AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " HIGH SPEED FLIGHT
Sykes v. United States, ___ U.S. ___, 131 S.Ct. 2267 (Jun. 9, 2011) (Indiana conviction of felony vehicle flight falls within the definition of crime of violence for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), that closely resembles the crime of violence aggravated felony definition; high speed flight does not have, as an element, the use of force, but does create a serious potential risk of physical injury to another).

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Mosley, 575 F.3d 603 (6th Cir. Jul. 23, 2009) (Michigan conviction of resisting and obstructing a police officer, under Mich. Comp. Laws 750.81d(1) ("assaults, batters, wounds, resists, obstructs, opposes, or endangers a person whom the individual knows or has reason to know is performing his or her duties."), is not a crime of violence for purposes of the Armed Career Criminal Act, since obstructing does not contain an element of force or create a substantial risk that force will be used in committing the offense).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE CAUSING INJURY
Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (Nov. 9, 2004) (Florida conviction of driving under the influence and accidentally causing serious bodily injury, in violation of Florida Stats. Ann. § 316.193(3)(c), did not constitute an aggravated felony as a crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of triggering deportation, since the offense did not have a mens rea requirement in excess of strict liability or negligence, sufficient to meet the statutory requirement of a substantial risk that the defendant would intentionally use force in the commission of the offense).

U.S.
Supreme Court

AGGRAVATED FELONY - CRIME OF VIOLENCE - AUTO THEFT
Nguyen v. Holder, 571 F.3d 524 (6th Cir. Jul. 2, 2009) (California conviction of auto theft, in violation of what is now codified at Penal Code 487(d)(i) (any person who (1) takes possession; (2) of an automobile; (3) owned or possessed by another; (4) by means of trespass and (5) with intent to permanently deprive the owner of such property; and (6) carries the automobile away), does not constitute a "crime of violence" under 18 U.S.C. 16(b), and is therefore not an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of rendering the defendant deportable, because the theft offense does not by its nature, involve a "substantial risk" that physical force against the person or property of another may be used in the course of committing the offense).

AGGRAVATED FELONY " DOMESTIC VIOLENCE " CORPORAL INJURY TO SPOUSE
Banuelos-Ayon v. Holder, 611 F.3d 1080, 1083 (9th Cir. 2010) (California conviction of corporal injury of a spouse constitutes a crime of violence, and thus is a crime of domestic violence, INA 237(a)(2)(E)(i), 8 U.S.C. 237(a)(2)(E)(i), for immigration purposes).

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(a), discharge of a firearm, is not categorically an aggravated felony crime of violence, since the offense may be committed recklessly).

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(b) and (c), discharge of a firearm in the direction of a building, person, or vehicle, is categorically an aggravated felony crime of violence).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SODOMY BY FORCE
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (military crime of sodomy by force in violation of Uniform Code of Military Justice, article 125, 10 U.S.C. 925, and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. 16).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- ASSAULT WITH A DANGEROUS WEAPON
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for assault and battery with a dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable under this statute did not create a substantial risk that the defendant would intentionally use physical force against person or property, since the minimum conduct included reckless conduct), applying Leocal v. Ashcroft, 543 U.S. 1 (2004).

AGGRAVATED FELONY " CRIME OF VIOLENCE " STALKING
Matter of Singh, 25 I. & N. Dec. 670 (BIA 2012) (California conviction for stalking, in violation of Penal Code 646.9(b), is an aggravated felony crime of violence, under 18 U.S.C. 16(b), for immigration purposes because when a course of conduct that is both serious and continuing in nature is coupled with a credible threat to another persons safety, there is a substantial risk that physical force may be used.), following Matter of Malta, 23 I&N Dec. 656 (BIA 2004), rev'd Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1083-84 (9th Cir. 2007).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH INTENT TO COMMIT A LISTED FELONY
Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011) (California conviction of assault with intent to commit a felony, in violation of Penal Code 220, is categorically an aggravated felony crime of violence, even though the record of conviction did not specify which felony he intended to commit, because all the enumerated felonies listed in that statute constitute crimes of violence).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION OF ASSAULT WITH A DEADLY WEAPON
Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) (Rhode Island conviction for violation of G.L.R.I. 11-1-9, solicitation to commit a felony, is a crime of violence under 18 U.S.C. 16(b), and triggers removal as an aggravated felony crime of violence with a sentence of one year imposed, where the charging document indicated that the noncitizen pleaded guilty to solicitation to commit assault with a deadly weapon), agreeing with United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir. 2006); Prakash v. Holder, 579 F.3d 1033, 1036-37 (9th Cir. 2009) (because there is a substantial risk that solicitation of rape and of assault will lead to violence, it is a crime of violence under 18 U.S.C. 16(b)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION
Matter of Guerrero, 25 I&N Dec. 631, 635 (BIA 2011) (Rhode Island conviction for criminal solicitation, in violation of R.I. Gen. L. 11-1-9, was a crime of violence where the crime solicited was assault: the State must show that the accused intended that the solicited crime, in this case assault with a dangerous weapon, would be committed. . . . [A]lthough the respondents solicitation offense can be committed without the use of force and before any actual force is used, this does not diminish the substantial risk of violence that solicitation of . . . assault inherently presents.); see Lopes v. Keisler, 505 F.3d 58, 63 (1st Cir. 2007) (Rhode Island conviction of assault is an aggravated felony crime of violence because it has as an element the attempted use, or threatened use of physical force against the person or property of another.); quoting 18 U.S.C. 16(a)).

AGGRAVATED FELONY " SOLICITATION " CRIME OF VIOLENCE
Matter of Guerrero, 25 I&N Dec. 631, 635 (BIA 2011) (Rhode Island conviction for criminal solicitation, in violation of R.I. Gen. L. 11-1-9, was a crime of violence where the crime solicited was assault: the State must show that the accused intended that the solicited crime, in this case assault with a dangerous weapon, would be committed. . . . [A]lthough the respondents solicitation offense can be committed without the use of force and before any actual force is used, this does not diminish the substantial risk of violence that solicitation of . . . assault inherently presents.); see Lopes v. Keisler, 505 F.3d 58, 63 (1st Cir. 2007) (Rhode Island conviction of assault is an aggravated felony crime of violence because it has as an element the attempted use, or threatened use of physical force against the person or property of another.); quoting 18 U.S.C. 16(a)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(a)
Matter of Perez Ramirez, 25 I. & N. Dec. 203 (BIA Mar. 17, 2010) (California conviction for misdemeanor willful infliction of corporal injury on a spouse, in violation of Penal Code 273.5(a), qualifies categorically as a conviction for a "crime of violence" within the meaning of 18 U.S.C. 16(a)).

AGGRAVATED FELONIES " CRIME OF VIOLENCE " ASSAULT AND BATTERY AGAINST A FAMILY OR HOUSEHOLD MEMBER
Matter of Velasquez, 25 I. & N. Dec. 278 (BIA 2010) (In light of the decision of the United States Supreme Court in Johnson v. United States, 130 S. Ct. 1265 (2010), that because the Virginia statute reaches conduct that cannot be classified as violent force, the respondents offense is not categorically a crime of violence and thus cannot be classified as a categorical crime of domestic violence for purposes of section 237(a)(2)(E) of the Act.).

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF SIMULATED CONTROLLED SUBSTANCE
Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010) (Texas conviction of delivery of a simulated controlled substance, as defined by 482.001(4) of the Texas Health and Safety Code, is not an aggravated felony drug trafficking offense because federal law does not punish distribution of a non-controlled substance in place of a real controlled substance; the violation is, however, a controlled substances offense for purposes of triggering removability under INA 237(a)(2)(B)).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - FIFTH CIRCUIT RULE
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 391, 394 (BIA Dec. 13, 2007) (en banc) (Texas conviction for possession of less than 28 grams of alprazolam, in violation of Texas Health & Safety Code 481.117(b), qualifies as an "aggravated felony" conviction under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), in cases arising in the Fifth Circuit, because it was committed after the respondent's prior State "conviction" for a "drug, narcotic, or chemical offense" became "final" within the meaning of 21 U.S.C. 844(a), when all avenues of direct appellate review had been exhausted and respondent's status as a recidivist drug offender was either admitted by respondent or determined by a judge or jury in connection with a prosecution for that simple possession offense), following United States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005), cert. denied, 546 U.S. 1137 (2006) (alternate holding that illegal reentry defendant's 2001 Colorado conviction for codeine possession qualified as a valid factual predicate for an "aggravated felony" illegal reentry sentence enhancement because the underlying offense was a "felony" under both State and Federal law, since it could have been punished under 21 U.S.C. 844(a) as a felony with a penalty of up to two years imprisonment), citing United States v. Simpson, 319 F.3d 81, 85-86 (2d Cir. 2002), superseded on other grounds by Lopez v. Gonzales, 127 S. Ct. 625, 633 (2006); see also United States v. Castro-Coello, 474 F. Supp. 2d 853, 859-62 (S.D. Tex. 2007), affd sub nom. United States v. Molina-Gonzales, 234 Fed. Appx. 319 (5th Cir., July 17, 2007) (No. 07-40279) (per curiam); see also United States v. Lopez-Molina, 494 F. Supp. 2d 517, 521-22 (W.D. Tex. 2007); United States v. Rodriguez-De Leon, 492 F. Supp. 2d 677, 680-82 (W.D. Tex. 2007).

CRIME OF VIOLENCE - DOMESTIC BATTERY
Matter of Sanudo, 23 I. & N. Dec. 968 (BIA Aug. 1, 2006) (California conviction for domestic battery in violation of Penal Code §§ 242 and 243(e)(1) does not qualify categorically as a conviction for a "crime of violence" within the meaning of 18 U.S.C. § 16(a) or (b), and is thus not a "crime of domestic violence" under INA § 237(a)(2)(E)(i)), following Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).

CRIME OF VIOLENCE - UNAUTHORIZED USE OF MOTOR VEHICLE
Matter of Brieva, 23 I. & N. Dec. 766 (BIA June 7, 2005) (Texas conviction of unauthorized use of a motor vehicle, in violation of Texas Penal Code § 31.07(a), is a crime of violence under 18 U.S.C. § 16(b), and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)).

CRIME OF VIOLENCE - STALKING
Matter of Malta, 23 I. & N. Dec. 656 (BIA Mar. 11, 2004) (California conviction of stalking based on harassing conduct in violation of Penal Code § 646.9(b), which proscribes stalking when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the stalking behavior, is a crime of violence under 18 U.S.C. § 16(b), and is therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).

CRIME OF VIOLENCE - MANSLAUGHTER, ABORTION
Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651, 654 (BIA Feb. 5, 2004) (New York conviction of first-degree manslaughter, abortion, in violation of Penal Law § 125.20(3), does not constitute a crime of violence and is therefore not an aggravated felony for immigration purposes, under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)).

CRIME OF VIOLENCE - MANSLAUGHTER
Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651 (BIA Feb. 5, 2004) (New York conviction of first-degree manslaughter, in violation of Penal Law § 125.20(1) and (2), constitutes a crime of violence and therefore an aggravated felony for immigration purposes, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), because acting with intent to cause serious physical injury or death to a person "by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," under 18 U.S.C. § 16(b)); see Chery v. Ashcroft, 347 F.3d 404 (2d Cir. Oct. 17, 2003); Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. Sept. 9, 2003); Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. Apr. 22, 2003); but see Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. Apr. 22, 2003).

CRIME OF VIOLENCE - ASSAULT
Matter of Martin, 23 I. & N. Dec. 491 (BIA Sept. 26, 2002) (Connecticut conviction of third-degree assault, in violation of section 53a-61(a)(1) of the Connecticut General Statutes, which involves the intentional infliction of physical injury upon another, is a crime of violence under 18 U.S.C. § 16(a), for deportation purposes).

CRIME OF VIOLENCE - SEXUAL ABUSE OF MINOR
Matter of Small, 23 I. & N. Dec. 448 (BIA June 4, 2002) (en banc) (New York misdemeanor conviction of sexual abuse of a minor, in violation of N.Y. Penal Law § 130.60(2), with a sentence of one year in custody, constitutes a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
Matter of Ramos, 23 I. & N. Dec. 336 (BIA Apr. 4, 2002) (Massachusetts conviction of operating a motor vehicle while under the influence of intoxicating liquor, in violation of Massachusetts General Laws, chapter 90, § 24(1)(a)(1), is not a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense and is therefore not a crime of violence, so it cannot be an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)), overruling Matter of Puente-Salazar, 22 I. & N. Dec. 1006 (BIA Sept. 29, 1999), and Matter of Magallanes, 22 I. & N. Dec. 1 (BIA Mar. 19, 1998).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
Matter of Olivares-Martinez, 23 I. & N. Dec. 148 (BIA July 3, 2001) (under United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. Mar. 1, 2001) and United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. May 11, 2001), a Texas conviction for felony DWI is not a crime of violence under 18 U.S.C. § 16(b) (1994), and is therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of removability in cases arising in the Fifth Circuit, so Matter of Puente-Salazar, 22 I. & N. Dec. 1006 (BIA Sept. 29, 1999), will not be applied there).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
Matter of Puente-Salazar, 22 I. & N. Dec. 1006 (BIA Sept. 29, 1999) (Texas conviction of driving while intoxicated under Texas Penal Code § 49.04, which is a felony as a result of a sentence enhancement statute, is a conviction for a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)), overruled by Matter of Ramos, 23 I. & N. Dec. 336 (BIA Apr. 4, 2002).

CRIME OF VIOLENCE - CRIMINAL CONTEMPT
Matter of Aldabesheh, 22 I. & N. Dec. 983 (BIA Aug. 30, 1999) (en banc) (New York conviction for criminal contempt in the first degree, in violation of section 215.51(b)(i) of the New York Penal Law, with a sentence to imprisonment of at least one year, is a conviction for a crime of violence as defined under 18 U.S.C. § 16(b), thus rendering it an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).

CRIME OF VIOLENCE - NEGLIGENT CHILD ABUSE
Matter of Sweetser, 22 I. & N. Dec. 709 (BIA May 19, 1999) (Colorado conviction of criminally negligent child abuse under sections 18-6-401(1) and (7) of the Colorado Revised Statutes, where negligence in leaving stepson alone in a bathtub resulted in the childs death, was not a crime of violence under 18 U.S.C. § 16(b), because there was no "substantial risk that physical force" would be used in the commission of the crime, and the conviction was therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)).

CRIME OF VIOLENCE - ROBBERY
Matter of SS, 22 I. & N. Dec. 458 (BIA Jan. 21, 1999) (Washington conviction of first-degree robbery of an occupied home while armed with a handgun, in violation of Wash. Rev. Code § 9A.56.200(1), with a sentence to 55 months imprisonment, is an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of constituting a "particularly serious crime" rendering the noncitizen ineligible for withholding of removal under INA § 241(b)(3)(B)(ii)), overruled on other grounds by Matter of YL, 23 I. & N. Dec. 270 (BIA Mar. 5, 2002).

CRIME OF VIOLENCE - ARSON
Matter of Palacios-Pinera, 22 I. & N. Dec. 434 (BIA Dec. 18, 1998) (en banc) (Alaska conviction of arson in the first degree under section 11.46.400 of the Alaska Statutes, with a seven-year sentence, was a "crime of violence" and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
Matter of Magallanes-Garcia, 22 I. & N. Dec. 1 (BIA Mar. 19, 1998) (conviction of aggravated driving while under the influence, with a two and a half year sentence, was a "crime of violence" and therefore an aggravated felony within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), triggering deportation under 8 U.S.C. § 1251(a)(2)(A)(iii)), overruled by Matter of Ramos, 23 I. & N. Dec. 336 (BIA Apr. 4, 2002).

CRIME OF VIOLENCE - ROBBERY
Matter of LSJ, 21 I. & N. Dec. 973 (BIA July 29, 1997) (Florida conviction of robbery using a handgun with a sentence of two and a half years in prison constitutes an aggravated felony, within the meaning of INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as a crime of violence for which the sentence is at least one year).

CRIME OF VIOLENCE - TERRORISM
Matter of SS, 21 I. & N. Dec. 900 (BIA May 6, 1997) (Iowa conviction for terrorism under section 708.6 of the Iowa Code is a felony involving a substantial risk that physical force may be used against the victim, and therefore constitutes a "crime of violence" as defined in 18 U.S.C. § 16(b), and therefore an aggravated felony within the meaning of INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)).

CRIME OF VIOLENCE - ATTEMPTED MANSLAUGHTER
Matter of Yeung, 21 I. & N. Dec. 610 (BIA Nov. 27, 1996) (Florida conviction of attempted manslaughter with a knife constituted aggravated felony as crime of violence with sentence imposed of one year or more under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)).

CRIME OF VIOLENCE - RAPE WITHOUT FORCE
Matter of B, 21 I. & N. Dec. 287 (BIA Mar. 28, 1996) (Maryland conviction for second-degree statutory (not forcible) rape under Article 27, section 463(a)(3) of the Annotated Code of Maryland, with a 10-year sentence, constitutes a "crime of violence" under 18 U.S.C. § 16(b), and, hence, an "aggravated felony" under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since whenever an older person attempts to sexually touch a child under the age of consent, there is invariably a substantial risk that physical force will be wielded to ensure the childs compliance), distinguished by Xiong v. INS, 173 F.3d 601 (7th Cir. Apr. 12, 1999).

CRIME OF VIOLENCE - INVOLUNTARY MANSLAUGHTER
Matter of Alcantar, 20 I. & N. Dec. 801 (BIA May 25, 1994) (Illinois conviction for involuntary manslaughter under Ill. Rev. Stat. ch. 38, para. 9-3(a), with a sentence to 10 years in prison, constituted a "crime of violence" under 18 U.S.C. § 16(b), and an "aggravated felony" as defined in INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).

CRIME OF VIOLENCE - AGGRAVATED BATTERY
Matter of B, 20 I. & N. Dec. 427 (BIA Nov. 19, 1991) (conviction of aggravated battery by injuring a person with a shot from a firearm constitutes a crime of violence and is therefore an aggravated felony since a sentence of five years was imposed)

AGGRAVATED FELONY - CRIME OF VIOLENCE - STALKING
United States v. Mohr, 554 F.3d 604 (5th Cir. Jan. 6, 2009) (South Carolina conviction for stalking, in violation of S.C.Code 1976 16-3-1700(B) is a crime of violence for purposes of the Armed Career Criminal Act; even though the judgment indicated that the defendant was convicted under the "non-violent" portion of the statute; the elements of the statute itself indicate that the offense involved a substantial potential risk of physical injury to another).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CARJACKING
United States v. Velasquez-Bosqe, 601 F.3d 955 (9th Cir. April 15, 2010) (California conviction for violation of Penal Code 215, carjacking, is categorically a crime of violence for illegal re-entry sentencing purposes).

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
United States v. Whindleton, 797 F.3d 105 (1st Cir. Aug. 10, 2015) (Massachusetts conviction for conviction for assault with a deadly weapon under Massachusetts General Laws ch. 265, 15B(b) [[w]hoever, by means of a dangerous weapon, commits an assault upon another.], constitutes a violent felony under the ACCA); following United States v. Am, 564 F.3d 25, 33 & n. 9 (1st Cir. 2009) (an ADW conviction under under Massachusetts General Laws ch. 265, 15B(b) clearly satisfies the ACCA's Force Clause). Note: At issue in this case is whether the Massachusetts offense of assault with a dangerous weapon (ADW), Mass. Gen. L. ch. 265, 15B(b), has an element the use, attempted use, or threatened use of physical force as defined in the federal Armed Career Criminal Act (ACCA). This question is relevant under immigration law, because the aggravated felony definition of crime of violence includes identical language. 18 U.S.C. 16(a). Whindleton, supra, at 112. Immigration attorneys should note that the First Circuit may have left open an argument regarding the degree of intent necessary for an ADW conviction and whether that intent is sufficient for a violent felony or a crime of violence. See Whindleton at n.9 & n.12.

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT " INTENT
Villanueva v. Holder, 784 F.3d 51 (1st Cir. Apr. 24, 2015) (Connecticut conviction for assault in the third degree, under Conn. Gen.Stat. 53a"61, did not constitute a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), where the record of conviction did not indicate the subdivision under which the noncitizen was convicted, since two of the three sections involved only recklessness or negligence which are insufficient intent to constitute a crime of violence under 18 U.S.C. 16).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT AND BATTERY
United States v. Martinez, ___ F.3d ___, 2014 U.S. App. LEXIS 15173 (1st Cir. Aug. 6, 2014) (Massachusetts convictions for assault and battery and simple assault, under Mass. Gen. L. ch. 265, 13A, did not categorically constitute crimes of violence under the Federal Sentencing Guidelines, U.S.S.G. 4B1.2(a), even though the defendant admitted having struck his girlfriend, because the term struck covers conduct that is neither intentional nor involves violent force). Note: The defendant did not raise a claim that the assault and battery statute was not divisible, so no resort to the record of conviction was proper; therefore, the court did not reach that issue. Immigration attorneys should argue that under Martinez, Massachusetts simple assault can never be an aggravated felony as a crime of violence or a crime of domestic violence under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i). Similarly, immigration counsel should argue that Massachusetts assault and battery is not a crime of violence " both because the record of conviction does not clearly and necessarily establish a conviction for harmful battery and because (most importantly) assault and battery is not a divisible offense and therefore should never be considered a crime of violence.

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- BREAKING AND ENTERING
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for breaking and entering with intent to commit a felony, M.G.L. ch. 266, 16, 18, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable did not create a substantial risk that the defendant would use physical force against person or property, since the minimum conduct included nonviolent entries of rarely-occupied structures through unlocked doors or windows,; rejecting the governments argument that the court should look only to the typical case charged under the statute). NOTE: A conviction for breaking and entering a building with a sentence of imprisonment of one year or more, suspended or imposed, remains an aggravated felony under a different provision of the aggravated felony statute. 8 U.S.C. 1101(a)(43)(G) (theft offense or burglary offense with sentence of one year or more is aggravated felony); see Taylor v. United States, 495 U.S. 575, 599 (1990) (burglary defined as unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- ASSAULT WITH A DANGEROUS WEAPON
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for assault and battery with a dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute a crime of violence, under 18 U.S.C. 16(a), because the minimum conduct punishable under this statute does not have as an element the use of violent force, but instead covers even the slightest touching with a dangerous weapon).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ATTEMPTED RECKLESS ASSAULT
Dale v. Holder, 610 F.3d 294 (5th Cir. Jun. 25, 2010) (New York conviction for first degree assault, in violation of New York Penal Code 120.10, is not necessarily an aggravated felony crime of violence since the statute is divisible and includes reckless assault; BIA erred in finding that defendants in New York cannot be convicted of "attempted" reckless assault - although attempted reckless assault does not necessarily appear logical from a criminal standpoint, New York case law indicates that the offense is an acceptable plea), citing People v. Guishard, 15 A.D.3d 731, 789 N.Y.S.2d 332, 333 (N.Y.App.Div.2005) (affirming plea conviction to attempted assault in the first degree although the crime was a "legal impossibility").

AGGRAVATED FELONY - CRIME OF VIOLENCE - INDECENT ASSAULT AND BATTERY ON MINOR AGED 14
Ramirez v. Mukasey, 520 F.3d 47 (1st Cir. Mar. 14, 2008) (Massachusetts conviction of indecent assault on person aged 14, in violation of M.G.L.A. c. 265, 13H, is an aggravated felony crime of violence; although the statute may be violated by a merely offensive touching, the statute requires a showing of lack of consent, and therefore commission of the crime involves a substantial risk that violence will be used).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Lopes v. Keisler, 505 F.3d 58 (1st Cir. Oct. 26, 2007) (Rhode Island conviction for assault and battery, in violation of Gen.Laws 1956, 11-5-3, is an aggravated felony for immigration purposes, since the statue requires "use of force" as an element; although the statute does not define "assault," the Rhode Island Supreme Court has defined assault as an attempt to do a bodily harm to another person with "force or violence"; "because section 11-5-3 does not provide a definition of assault, the BIA appropriately looked to Rhode Island case law to determine how the state defines the crime.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - VEHICULAR
United States v. Earle, 488 F.3d 537 (1st Cir. Jun. 6, 2007) (Massachusetts conviction of assault and battery with a dangerous weapon, a motor vehicle, in violation of Mass. Gen. Laws ch. 265, 15A(b), constituted a crime of violence, for illegal re-entry sentencing purposes, since the elements of the statute require the use of force against the person of another).

CRIME OF VIOLENCE - THIRD-DEGREE SEXUAL ASSAULT
Aguiar v. Gonzales, 438 F.3d 86 (1st Cir. Feb. 16, 2006) (Rhode Island conviction of third-degree sexual assault, in violation of R.I. Gen. Laws § 11-37-6 ["over the age of eighteen (18) and engaged in sexual penetration with another person over the age of fourteen (14) and under the age of consent, sixteen (16) years of age"], with two-year suspended term of imprisonment, constituted a "crime of violence" under 18 U.S.C. 16(b), since it involved a substantial risk that physical force would be used in its commission, and was therefore an aggravated felony crime of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes).

CRIME OF VIOLENCE - ASSAULT
United States v. Cordoza-Estrada, 385 F.3d 56 (1st Cir. Sept. 29, 2004) (New Hampshire conviction of simple assault for punching a man in the face and breaking his nose, with a sentence to twelve months of imprisonment with ten months suspended, constituted an aggravated felony crime of violence conviction, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), triggering an eight-level enhancement of sentence under U.S.S.G. § 2L1.2(b)(1)(C) for illegal re-entry, even though the conviction was a misdemeanor).

CRIME OF VIOLENCE - ASSAULT
United States v. Nason, 269 F.3d 10, 20 (1st Cir. Oct. 19, 2001) (Maine conviction for assault, under 17-A M.R.S.A. § 207 qualifies as a "crime of violence" for purposes of 18 U.S.C. § 922(g) (felon with a firearm), since the minimum conduct of "offensive physical contact," "invariably emanate[s] from the application of some quantum of physical force" which is sufficient to constitute the use of physical force for purposes of defining the offense as a crime of violence).

CRIME OF VIOLENCE - KIDNAPPING
Choeum v. INS, 129 F.3d 29 (1st Cir. Nov. 5, 1997) (New York conviction of kidnapping was crime of violence under 18 U.S.C. § 16(a), since it had force as an element, and therefore constituted an "aggravated felony " under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for immigration purposes).

Lower Courts of First Circuit

CRIME OF VIOLENCE - INDECENT ASSAULT ON MINOR
Sango-Dema v. District Director, INS, 122 F.Supp.2d 213 (D.Mass. Nov. 20, 2000) (Massachusetts conviction for indecent assault and battery on a person over fourteen years old, in violation of Mass. Gen. L. ch. 265, § 13H, with sentence of three to five years suspended sentence, constitutes a "crime of violence," an aggravated felony under 18 U.S.C. § 16(b) and INA 101(43)(F), 8 U.S.C. § 1101(43)(F), for removal purposes, since "any violation of Mass. Gen. L. ch. 256, § 13H, by its nature, presents a substantial risk that force may be used in order to overcome the victims lack of consent and accomplish the indecent touching. Sutherland v. Reno, 228 F.3d 171, 176 (2d Cir. 2000).").

CRIME OF VIOLENCE - CHILD ABUSE WITH INJURY
Mathews v. Reno, 52 F.Supp.2d 195 (D.Mass. May 18, 1999) (Rhode Island conviction of second-degree child abuse, the infliction upon a child of any "serious physical injury," in violation of R.I. Gen. Laws § 11-9-5.3(2), constitutes a crime of violence under 18 U.S.C. § 16(a), and is considered an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for immigration purposes).

CRIME OF VIOLENCE - ASSAULT ON OFFICER
Rowe v. INS, 45 F.Supp.2d 144 (D.Mass. Apr. 30, 1999) (conviction for assault and battery of a police officer is an aggravated felony as defined by INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of deportation).

Second Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SECOND-DEGREE ASSAULT
Morris v. Holder, 676 F.3d 309 (2d Cir. Apr. 23, 2012) (New York conviction for second-degree assault under New York Penal Law 120.05(2) categorically constitutes a crime of violence for the purposes of 18 U.S.C. 16(b), and is therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101 (a)(43)(F), finding argument that the offense is not a crime of violence under 18 U.S.C. 16(a) because the crime does not require "physical force" to be inopposite because 16(b) does not require use of physical force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD-DEGREE BURGLARY
United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third degree burglary, in violation of N.Y. Penal Law 140.20 [knowingly enters or remains unlawfully in a building with intent to commit a crime therein.], did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the statute does not necessarily involve use of force against another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF A FIREARM
United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third-degree criminal possession of a loaded firearm, in violation of N.Y. Penal Law 265.02(4), did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the crime of violence definition requires some affirmative conduct beyond mere possession of a gun); following United States v. Gamez, 577 F.3d 394, 398 (2d Cir. 2009).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF A WEAPON
Brooks v. Holder, 621 F.3d 88 (2d Cir. Sept. 17, 2010) (New York conviction of second degree possession of a weapon, in violation of N.Y. Penal Law 265.03(1)(b), punishing possession of a loaded firearm with intent to use against another, is an aggravated felony crime of violence for removal purposes, under INA 101 (a)(43)(F), 8 U.S.C 1101 (a)(43)(F), since offense involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.); accord, Henry v. Bureau of Immigration & Customs Enforcement, 493 F.3d 303 (3d Cir. 2007).

AGGRAVATED FELONY - CRIME OF VIOLENCE - POSSESSION OF A WEAPON
United States v. Gamez, 577 F.3d 394 (2d Cir. Aug. 20, 2009) (New York conviction for violation of Penal Law 265.03, second degree possession of a weapon, is not a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(a) -- MASSACHUSETTS CONVICTION OF ASSAULT ON OFFICER UNDER INTENTIONAL THEORY CONSTITUTED CRIME OF VIOLENCE SINCE HAS ELEMENT OF USE OF FORCE
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts statute defining offense of assault on police officer and other categories of public official, Massachusetts General Laws chapter 265, section 13D, under intentional theory of assault, constitutes a crime of violence under 18 U.S.C. 16(a), since it has an element of use of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) -- MASSACHUSETTS CONVICTION OF ASSAULT ON OFFICER UNDER WANTON OR RECKLESS THEORY CONSTITUTED CRIME OF VIOLENCE UNDER 16(b) SINCE IT HAS A SUBSTANTIAL RISK THE DEFENDANT WILL USE FORCE TO COMMIT THE OFFENSE
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts statute defining offense of assault on police officer and other categories of public official, Massachusetts General Laws chapter 265, section 13D, under the wanton or reckless theory of assault, constitutes a crime of violence under 18 U.S.C. 16(b), since it offers a substantial risk the defendant will use force to commit the offense; the court found that Massachusetts law required physical or bodily injury to convict).

CRIME OF VIOLENCE - SEXUAL CONTACT WITH CHILD UNDER
16 Dos Santos v. Gonzalez, __ F.3d __, 2006 WL 521583 (2d Cir. Mar. 3, 2006) (Connecticut conviction of violating Connecticut General Statute, § 53-21(a)(2) [punishing "contact with the intimate parts, as defined by section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child."], is an aggravated felony crime of violence for immigration purposes as defined by 18 U.S.C. § 16(b)).

CRIME OF VIOLENCE - STATUTORY RAPE
Chery v. Ashcroft, 347 F.3d 404 (2d Cir. Oct. 17 2003) (Connecticut conviction under Conn.G.S § 53a-71 for consensual sexual intercourse with a person under age 18 (statutory rape) is a crime of violence and aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for immigration purposes, even though no harm was actually done to 14-year-old victim, since offense involves a substantial risk that physical force might be used against the victim in the course of committing the offense).

CRIME OF VIOLENCE - FIRST DEGREE UNLAWFUL IMPRISONMENT
Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. Sept. 9, 2003) (New York conviction of unlawful imprisonment in the first degree, in violation of N.Y. Penal Law § 135.10, with indeterminate sentence of one to three years, held not to be an aggravated felony crime of violence within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes, since the statute of conviction was divisible and the record of conviction did not establish that the particular conviction fell within the COV portion of the statute, since it was improper to consider the narrative statement of facts contained in the presentence report as part of the record of conviction).

CRIME OF VIOLENCE - SECOND DEGREE MANSLAUGHTER
Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. Apr. 22, 2003) (New York conviction of manslaughter in the second degree, under N.Y.P.L. § 125.15(1), is not a crime of violence under 18 U.S.C. § 16(b) and thus is not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes, since the minimum criminal conduct required to violate the statute does not necessarily present a substantial risk that the defendant will intentionally use physical force against the person or property of another, because the scope of the law is broad; passive conduct or omissions alone are sufficient for conviction).

CRIME OF VIOLENCE - THIRD DEGREE ASSAULT
Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. Apr. 22, 2003) (Connecticut conviction of third-degree assault in violation of section 53a-61(a)(1) of the Connecticut General Statutes, which involves the intentional infliction of physical injury upon another, is not a crime of violence under 18 U.S.C. § 16(a) and is therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) because use of force is not an element of the offense).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. July 20, 2001) (New York conviction of driving while intoxicated, in violation of New York Vehicle and Traffic Law § 1192.3, did not necessarily constitute a "crime of violence" under 18 U.S.C. § 16(b), since a risk of the use of force is not an integral part of the offense, and was thus not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for deportation purposes).

CRIME OF VIOLENCE - ASSAULT
United States v. Pacheco, 225 F.3d 148 (2d Cir. Aug. 29, 2000), cert. denied, 533 U.S. 904, 121 S.Ct. 2246 (2001) (Rhode Island misdemeanor simple assault conviction, for which suspended sentence of one year was imposed, constituted an aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), warranting 16-level enhancement of illegal re-entry sentence for violation of INA § 276(a)(1), 8 U.S.C. § 1326(a)(1) under U.S.S.G. 2L1.2(b)(1)(A)).

Lower Courts of Second Circuit

CRIME OF VIOLENCE - ASSAULT
Milbin v. Ashcroft, 293 F.Supp.2d 158 (D.Conn. Dec. 2, 2003) (Connecticut conviction under any subdivision of Conn. Gen. Stat. § 53a-61, which prohibits various ways of causing injury to a person, did not constitute a crime of violence within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), 18 U.S.C. 16(a), because it does not have use of force as an element, and could be violated by guile, deception, or even deliberate omission), following Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. Apr. 22, 2003).

CRIME OF VIOLENCE - RISK OF INJURY
Santapaola v. Ashcroft, 249 F.Supp.2d 181 (D.Conn. Mar. 13, 2003) (Connecticut conviction for risk of injury, in violation of Conn. Gen.Stat. § 53-21(1), constituted an aggravated felony conviction for a "crime of violence," under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for deportation purposes).

CRIME OF VIOLENCE - SEXUAL ASSAULT ON MINOR
United States v. Reve, 241 F.Supp.2d 470 (D.N.J. Jan. 31, 2003) (New Jersey conviction of sexual assault, defined as committing an act of sexual penetration with a victim who is at least thirteen but less than sixteen years old and the actor is at least four years older than the victim, in violation of former N.J.S.A. § 2C:14-2(c)(5) (1995), recodified, N.J.S.A. § 2C:14-2(c)(4) (Supp. 2002), did not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of revocation of naturalization, because the offense did not have as an element using, attempting to use, or threatening to use force against the victim, as required by 18 U.S.C. § 16(a), and government did not argue substantial risk under 18 U.S.C. § 16(b)).

CRIME OF VIOLENCE - ASSAULT WITH INJURY
Persaud v. McElroy, 225 F. Supp. 2d 420 (S.D.N.Y. Oct. 7, 2002) (New York conviction of assault with injury under N.Y. Penal Law § 120.05(6) was not a crime of violence under 18 U.S.C. § 16(a) because it did not require, as an element of the offense, that the defendant use physical force to inflict the injury, and the conviction was therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).

CRIME OF VIOLENCE - MANSLAUGHTER
Greenidge v. INS, 204 F.Supp.2d 594 (S.D.N.Y. Nov. 29, 2001) (Arizona manslaughter conviction, in violation of A.R.S. § 151-54, is a crime of violence, and therefore an aggravated felony pursuant to INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)), for removal purposes).

Third Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b) " RECKLESS MENS REA DOES NOT NECESSARILY BAR CRIME OF VIOLENCE UNDER 18 U.S.C. 16(b)
Aguilar v. Attorney General of the U.S., ___ F.3d ___, 2011 WL 5925141 (3d Cir. Nov. 29, 2011) (Pennsylvania conviction of sexual assault, under 18 Pa. Cons.Stat. 3124.1, constituted a crime of violence under 18 U.S.C. 16(b), and was therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), even though the offense has a minimum mens rea of recklessness; because sexual assault raises a substantial risk that the perpetrator will intentionally use force in furtherance of the offense, we agree with the BIA that it constitutes a crime of violence under 16(b).).

AGGRAVATED FELONY " DRUG TRAFFICKING " DISTRIBUTION OF MARIJUANA
Catwell v. Attorney General, 623 F.3d 199 (3d Cir. Oct. 13, 2010) (Pennsylvania conviction of possession with intent to distribute marijuana, in violation of 35 Pa. Stat. Ann. 780-113(a)(30), involved 120.5 grams, which was more than a small amount, so the BIA correctly concluded that the conviction constituted a drug trafficking aggravated felony, disqualifying petitioner from eligibility for cancellation of removal).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SIMPLE ASSAULT
United States v. Otero, __ F.3d __ 2007 WL 2610412 (3d Cir. Sept. 12, 2007) (Pennsylvania conviction of simple assault, in violation of 18 Pa. Cons.Stat. Ann. 2701(a) (2003), is not necessarily a crime of violence for illegal re-entry sentencing purposes since the offense does not necessarily require proof of the use of force when causing "bodily injury."), applying reasoning of Popal v. Gonzales, 416 F.3d 249, 254 (3d Cir. 2005) (same statute is not necessarily an aggravated felony crime of violence) to the sentencing context.

AGGRAVATED FELONY - CRIME OF VIOLENCE - FIREARMS POSSESSION
Henry v. BICE, 493 F.3d 303 (3d Cir. Jul. 11, 2007) (New York conviction for possession of a loaded firearm with intent to use it unlawfully against another person, under New York Penal Law 265.03, constitutes a crime of violence under 18 U.S.C. 16(b) and is therefore an aggravated felony for immigration purposes).

CRIME OF VIOLENCE - USE OF INTERSTATE COMMERCE FACILITIES FOR MURDER FOR HIRE
Ng v. Attorney General, 436 F.3d 392 (3d Cir. Feb. 7, 2006) (federal conviction of use of interstate commerce facilities in the commission of a murder-for-hire, in violation of 18 U.S.C. § 1958, constitutes a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for purposes of removal, because it "poses a substantial risk that physical force will be used against another," even though the putative hitman had no intent to murder: "That some violations of § 1958 will never culminate in an actual agreement or the commission of a murder does not alter our view that the natural consequence of using interstate commerce facilities in the commission of a murder-for-hire is that physical force will be used upon another.", citing United States v. Luskin, 926 F.3d 372, 379 (4th Cir. 1991) (use of interstate commerce facilities in the commission of a murder-for-hire under 18 U.S.C. § 1952A, the predecessor statute to 1958, constitutes a crime of violence); United States v. Cox, 74 F.3d 189, 190 (9th Cir. 1996) (conviction for soliciting the murder of wife constitutes a "crime of violence" under U.S.S.G. § 4B1.2, which defines a crime of violence as "conduct that presents a serious potential risk of physical injury to another").

CRIME OF VIOLENCE - SIMPLE ASSAULT
Singh v. Gonzales, 432 F.3d 533 (3d Cir. Jan. 3, 2006) (Pennsylvania misdemeanor conviction of simple assault, under 18 Pa. Cons.Stat. Ann. § 2701(a)(3) ("A person is guilty of assault if he . . . attempts by physical menace to put another in fear of imminent serious bodily injury."), constituted a crime of violence, under 18 U.S.C. § 16(a), and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of triggering deportation).

CRIME OF VIOLENCE - RECKLESS ENDANGERMENT
Singh v. Gonzales, 432 F.3d 533, 540-541 (3d Cir. Jan. 3, 2006) (Pennsylvania misdemeanor conviction of recklessly endangering another person, in violation of 18 Pa. Cons.Stat. Ann. § 2705, with a sentence of one year or more, did not constitute a crime of violence under 18 U.S.C. § 16(a), and was not a felony conviction, and therefore did not constitute a crime of violence under 18 U.S.C. § 16(a), and therefore was not an aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), since it requires a mens rea of no more than recklessness).

CRIME OF VIOLENCE - RECKLESS SIMPLE ASSAULT
Popal v. Gonzalez, 416 F.3d 249 (3d Cir. July 29, 2005) (Pennsylvania conviction of simple assault (reckless), in violation of Pennsylvania Penal Code § 18 Pa.C.S.A. 2701, is not an aggravated felony crime of violence for immigration purposes, since a mens rea of recklessness is insufficient to qualify as a crime of violence under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)).

CRIME OF VIOLENCE - ARSON
Tran v. Gonzales, 414 F.3d 464 (3d Cir. July 12, 2005) (Pennsylvania conviction of "reckless burning or exploding," in violation of 18 Pa.C.S.A. § 3301(d)(2), did not constitute a crime of violence under 18 U.S.C. § 16(b), and was therefore not an aggravated felony crime of violence under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for purposes of removal, since the crime required only a reckless mens rea, and involved no risk that the defendant would intentionally use force in the commission of the crime).

CRIME OF VIOLENCE - SEXUAL ASSAULT
United States v. Remoi, 404 F.3d 789 (3d Cir. Apr. 13, 2005) (New Jersey conviction of sexual contact with a helpless victim, in violation of New Jersey Statute § 2C:14-2c(2), requiring that victim of "penetration" have been "physically helpless" or "mentally defective or incapacitated," is a crime of violence for illegal re-entry sentencing purposes; although statute does not require physical force, it may be satisfied by proof that the contact occurred through exploitation of the victims helplessness, thus qualifying as a "forcible sex offense (including sexual abuse of a minor)" under U.S.S.G. § 2L1.2, app. n.1(B)(ii)).

CRIME OF VIOLENCE - TERRORISTIC THREATS
Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. Mar. 8, 2002) (Pennsylvania misdemeanor conviction of making terroristic threats, in violation of 18 Pa. Cons.Stat. § 2706 (1998), qualified as a "crime of violence" under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for immigration purposes, since the maximum of the indeterminate 11- to 23-month sentence imposed was one year or more).

CRIME OF VIOLENCE - VEHICULAR HOMICIDE
Francis v. Reno, 269 F.3d 162 (3d Cir. Oct. 16, 2001) (Pennsylvania conviction of vehicular homicide, in violation of 75 Pa.C.S.A. § 3732, did not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since misdemeanor vehicular homicide was not a "felony" under the INA, and even if conviction could be converted into felony, it did not involve a substantial risk of physical force required to make it an "aggravated felony").

Fourth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING ARREST
United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. Jan. 14, 2014) (en banc) (Maryland conviction of resisting arrest, in violation of Md. Code, Crim. Law 9"408(b)(1) [[a] person may not intentionally ... resist a lawful arrest.], does not qualify categorically as a "crime of violence" within the meaning of the residual force clause of U.S.S.G. 2L1.2(b)(1)(A), because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING ARREST
United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. Jan. 14, 2014) (en banc) (Maryland conviction of resisting arrest, in violation of Md. Code, Crim. Law 9"408(b)(1) [[a] person may not intentionally ... resist a lawful arrest.], does not qualify categorically as a "crime of violence" within the meaning of the residual force clause of U.S.S.G. 2L1.2(b)(1)(A), because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SECOND-DEGREE ASSAULT
United States v. Royal, 731 F.3d 333 (4th Cir. Oct. 1, 2013) (Maryland conviction for second-degree assault, in violation of Md. Code, Crim. Law 3"203(a), did not constitute a predicate violent felony under the Armed Career Criminal Act, because the Maryland offense was a facially indivisible statute, i.e., one that does not set out elements of the offense in the alternative, but which may nevertheless broadly criminalize qualitatively different categories of conduct; Maryland courts do not require unanimity on whether the offense was committed by offensive physical contact or infliction of physical harm.).

AGGRAVATED FELONY " CRIME OF VIOLENCE " CHILD ABUSE
United States v. Gomez, 690 F.3d 194 (4th Cir. Aug. 10, 2012) (Maryland conviction of child abuse, in violation of Maryland Code 1957, Article 27, 35C, was not a crime of violence for illegal re-entry sentencing purposes because the offense could be committed without use of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS ENDANGERMENT
Massis v. Mukasey, 549 F.3d 631 (4th Cir. Dec. 9, 2008) (Maryland misdemeanor conviction of reckless endangerment, in violation of Md. Code Ann. art. 27, 120 (1995) ("recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another" with a five-year maximum), does not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because recklessness is an insufficient mental state where "a crime of violence requires a substantial likelihood that the perpetrator will intentionally employ physical force. See, e.g., Dalton v. Ashcroft, 257 F.3d 200, 207-08 (2d Cir.2001); United States v. Hernandez-Castellanos, 287 F.3d 876, 881 (9th Cir.2002).").

AGGRAVATED FELONY - CRIME OF VIOLENCE - MALICIOUS BURNING OF PROPERTY CONSTITUTES CRIME OF VIOLENCE
Mbea v. Gonzales, ___ F.3d ___, 2007 WL 852346 (4th Cir. March 22, 2007) (District of Columbia conviction of malicious burning of property, in violation of D.C.Code 22-401 (1994) [current version at D.C.Code Ann. 22-301 (2000)], with an indeterminate sentence from 18 months to five years imprisonment, constitutes a crime of violence, under 18 U.S.C. 16(a), and therefore an aggravated felony which renders him statutorily ineligible for cancellation of removal under INA 240(A)(a) and for a hardship waiver under INA 212(h)(1)(B), since: "Fire is itself a physical force. Indeed, the Oxford English Dictionary defines "physical force" as, inter alia, "an influence acting within the physical world, a force of nature." See Oxford English Dictionary (2003). Fire is nothing if not a "force of nature" that exerts an influence "within the physical world." For fire not only has the power to provide warmth and light, but also the power to destroy."); see United States v. Mitchell, 23 F.3d 1, 2 n.3 (1st Cir. 1994) (per curiam) (holding that federal arson as set forth in 18 U.S.C. 844(i) is a "crime of violence" under 18 U.S.C. 3156(a)(4)); United States v. Marzullo, 780 F.Supp. 658, 662 & n. 7 (W.D.Mo. 1991) (same); United States v. Shaker, 665 F.Supp. 698, 702 n. 4 (N.D.Ind. 1987) (same). http://caselaw.lp.findlaw.com/data2/circs/4th/051204p.pdf

CRIME OF VIOLENCE - ASSALUT - 18 USC
16(b) Garcia v. Gonzales, ___ F.3d ___, 2006 WL 2061819 (4th Cir. Jul. 26, 2006) (New York conviction of second-degree assault, in violation of N.Y. Penal Law § 120.05 ["recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument"], does not constitute a "crime of violence" under 18 U.S.C. § 16(b), and thus is not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), since recklessness, like negligence, is not enough to support a determination that a crime is a "crime of violence"), following Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 447 (4th Cir. 2005) (such a violation did not qualify as a "crime of violence" because "[a]lthough the crime of violating Va. Code Ann. § 18.2-36 intrinsically involves a substantial risk that the defendant's actions will cause physical harm, it does not intrinsically involve a substantial risk that force will be applied 'as a means to an end.'").

CRIME OF VIOLENCE - ASSAULT - 18 USC
16(a) Garcia v. Gonzales, ___ F.3d ___, 2006 WL 2061819 (4th Cir. Jul. 26, 2006) (New York conviction of second-degree assault, in violation of N.Y. Penal Law § 120.05 ["recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument"], does not constitute an aggravated felony "crime of violence" under 18 U.S.C. § 16(a), since its definition does not contain an element that there be the intentional employment of physical force against a person or thing).

CRIME OF VIOLENCE - INVOLUNTARY MANSLAUGHTER
Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir. July 5, 2005) (Virginia conviction for simple involuntary manslaughter, in violation of Va. Code Ann. § 18.2-36 (2004), which requires the killing of a person as a proximate result of the defendants reckless disregard for human life, did not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), 18 U.S.C. § 16, because the conclusion of the court in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (Nov. 9, 2004) that "[i]n no ordinary or natural sense can it be said that a person risks having to use physical force against another person in the course of operating a vehicle while intoxicated and causing injury," id. at 383, strongly indicates that the result in Leocal would have been the same even had a violation of the statute there at issue required recklessness rather than mere negligence).

CRIME OF VIOLENCE - SEXUAL BATTERY
Wireko v. Reno, 211 F.3d 833 (4th Cir. May 4, 2000) (Virginia conviction of misdemeanor sexual battery, in violation of Va.Code 1950, § 18.2-67.4, was a crime of violence, and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for immigration purposes precluding judicial review of a removal order), distinguished by Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. Mar. 5, 2001).

Lower Courts of Fourth Circuit

CRIME OF VIOLENCE - ASSAULT WITH DANGEROUS WEAPON
United States v. Gebele, 117 F.Supp.2d 540, 544 (W.D.Va. Oct. 13, 2000) (Massachusetts conviction of Assault and Battery by Means of a Dangerous Weapon, with a sentence of five years and one day, was a "crime of violence" under 18 U.S.C. § 16(b) and therefore constituted an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of enhancing an illegal re-entry sentence).

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " MANSLAUGHTER
United States v. Garcia-Perez, ___ F.3d ___, 2015 WL 753759 (5th Cir. Feb. 23, 2015) (Florida conviction of manslaughter, in violation of Florida Statute 782.07, did not qualify as a crime of violence under United States Sentencing Guideline 2L1.2(b)(1)(A), because Florida manslaughter conviction does not require proof of force, and my be committed with negligent intent).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " ASSAULT WITH DEADLY WEAPON
United States v. Carrasco-Tercero, ___ F.3d ___, 2014 WL 983180 (5th Cir. Mar. 13, 2014) (New Mexico conviction of aggravated assault with a deadly weapon, under N.M. Stat. 30"3"2, was a crime of violence for illegal reentry sentencing purposes, notwithstanding that assault N.M. Stat. 30-3-1 includes the use of insulting language toward another impugning his honor, delicacy or reputation.; that New Mexico did not have approved jury instructions for an aggravated assault crime predicated on insulting language, combined with the fact that Carrasco"Tercero has presented no instance where a defendant has been charged with such an offense or where a New Mexico court has mentioned it as a possibility, leads this court to conclude that New Mexico does not in fact recognize this theory of aggravated assault.); disagreeing with United States v. Rede"Mendez, 680 F.3d 552, 557-560 (6th Cir.2012) (New Mexico conviction of aggravated assault, under N.M. Stat. 30"3"2, was not a crime of violence, because assault under N.M. Stat. 30-3-1 included the use of insulting language toward another impugning his honor, delicacy or reputation.).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b) "ATTEMPTED SEXUAL ASSAULT
Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) (Texas conviction of attempted sexual assault, in violation of Texas Penal Code 22.011(a)(1(C) [(1) intentionally or knowingly: . . . (C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;], did not categorically constitute an aggravated felony crime of violence for immigration purposes, because in a sexual encounter with a physician or a clergyman [both contained within the statutory definition of without consent], a victim could factually assent to the sexual relation, despite consent being deemed a legal nullity. In such situations, there is not a substantial risk that physical force may be used because there is not the same risk that the victim may figure out what's really going on and decide to resist as there would be if, as in Zaidi, a victim could wake up and resist an ongoing assault.); quoting Zaidi v. Ashcroft, 374 F.3d 357, 358 (5th Cir.2004) (per curiam).

AGGRAVATED FELONY " CRIME OF VIOLENCE " HIGH SPEED FLIGHT
United States v. Vargas-Soto, 700 F.3d 180 (5th Cir. Oct. 24, 2012) (Texas conviction for evading arrest using a motor vehicle, in violation of Tex. Penal Code Ann. 38.04(b)(1), qualified as an aggravated felony crime of violence); following United States v. Sanchez"Ledezma, 630 F.3d 447, 451 (5th Cir. 2011) (same), cert. denied, ___ U.S. ___, 131 S.Ct. 3024, 180 L.Ed.2d 851 (2011).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault [[e]ngag[ing] in conduct that creates a substantial danger of death or serious physical injury to another person.] is not a crime of violence under the residual clause of USSG 2L1.2, because the statute does not require any contact or injury or attempt or threat of offensive contact or injury, thus did not have as an element "the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault, in violation of Ark. Code 5-13-204(a)(1), is not a crime of violence for illegal re-entry sentencing purposes, under U.S.S.G. 2L1.2 cmt. n.1(B)(iii), because it does not require proof of an assault as that crime is generally defined"i.e., as an offense that involves the use, attempted use, or threatened use of offensive contact against another person).

AGGRAVATED FELONY"CRIME OF VIOLENCE"SEXUAL ACTIVITY WITH A MINOR
United States v. Chavez-Hernandez, 671 F.3d 494 (5th Cir. Feb. 13, 2012) (Florida conviction for sexual activity with a minor, in violation of Florida Statute 794.05, was not a crime of violence for illegal re-entry sentencing purposes, because state statute applied to 17-year-olds; defense counsel's admission at sentence that victim was 14 years of age established victim's status as a minor under the federal standard).

AGGRAVATED FELONY"CRIME OF VIOLENCE"DOMESTIC ASSAULT AND BATTERY
United States v. Miranda-Ortegon, 670 F.3d 661 (5th Cir. Feb. 10, 2012) (Oklahoma conviction for domestic assault and battery, in violation of Okla. Stat. tit. 21, 644C [[a]ny person who commits an assault and battery against a current or former spouse ... [or] a child ... shall be guilty of domestic abuse.], did not constitute an aggravated felony crime of violence for illegal re-entry sentencing purposes because the elements of the offense require only the slightest touching is necessary to constitute the force or violence element of battery.); quoting Steele v. State, 778 P.2d 929, 931 (Okla.Crim.App.1989); see United States v. Smith, 652 F.3d 1244, 1246 (10th Cir.2011) (Oklahoma assault-and-battery offense did not fall within the first prong of the Armed Career Criminal Act [has as an element the use, attempted use, or threatened use of physical force against the person of another, 18 U.S.C. 924(e)(2)(B)(i)]); see Johnson v. United States, """ U.S. """", 130 S.Ct. 1265, 1269"71, 176 L.Ed.2d 1, (2010) (holding that Florida felony battery conviction was not a violent felony under 18 U.S.C. 924(e)(1)(2)(B)(i), because the offense's elements are satisfied by any physical contact, no matter how slight (quotation marks and internal citation omitted)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF WEAPON
United States v. Marquez, 626 F.3d 214 (5th Cir. Nov. 10, 2010) (New Mexico violation of NMSA 30-22-16, possession of a deadly weapon by a prisoner, is a crime of violence for purposes of the armed career criminal act, since the offense involves a serious potential risk of injury to another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " CORPORAL INJURY OF A SPOUSE
United States v. Cruz-Rodriguez, 625 F.3d 274, 276 (5th Cir. Nov. 2, 2010) (per curiam) (California conviction of willful infliction of corporal injury, in violation of Penal Code 273.5(a), constituted a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), for purposes of imposing a 16-level enhancement to the offense level for illegal reentry sentence: With respect to the willful infliction of corporal injury offense, we previously rejected this argument in an unpublished opinion, holding that California Penal Code 237.5(a) penalizes the intentional use of force that results in a traumatic condition. United States v. Gutierrez, 371 Fed.Appx. 550, 551 (5th Cir.2010) (unpublished) (internal quotation marks and citation omitted). We find this reasoning persuasive. Moreover, our previous decision is consistent with the Ninth Circuit's analysis of 237.5(a). United States v. Laurico-Yeno, 590 F.3d 818, 820 (9th Cir.2010), cert. denied, --- U.S. ----, 131 S.Ct. 216, 2010 WL 2551985 (2010) (Because the use of physical force against the person of another is an element of the statute, we hold that California Penal Code 273.5 is a categorical crime of violence under U.S.S.G. 2L1.2.). Accordingly, we hold that the offense of willful infliction of corporal injury is a crime of violence for the purpose of sentence adjustments under U.S.S.G. 2L1.2(b)(1)(A)(ii).).

AGGRAVATED FELONY " CRIME OF VIOLENCE " CRIMINAL THREATS
United States v. Cruz-Rodriguez, 625 F.3d 274, 277 (5th Cir. Nov. 2, 2010) (per curiam) (California conviction of criminal threats, in violation of Penal Code 422, did not constitute a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), for purposes of imposing a 16-level enhancement to the offense level for illegal reentry sentence: On the other hand, with respect to the offense of making a criminal threat, we previously held in an unpublished opinion that the use, attempted use, or threatened use of physical force against the person of another is not an element of California Penal Code 2L1.2(b)(1)(A)(ii) because it is possible under [California] law for the State to obtain a conviction under ... the terroristic threats statute without proof of the threatened use of physical force against another person .... United States v. De La Rosa-Hernandez, 264 Fed.Appx. 446, 447-49 (5th Cir.2008) (unpublished) (internal quotation marks and citations omitted) (alteration in original). We likewise find this reasoning persuasive. In addition, this court reached the same conclusion with respect to a similar Pennsylvania statute, holding that the generic terroristic-threat offense at issue in that case is not a crime of violence. United States v. Ortiz-Gomez, 562 F.3d 683, 684-86 (5th Cir.2009). Therefore, we hold that the offense of making a criminal threat is not a crime of violence for the purpose of sentencing adjustments under U.S.S.G. 2L1.2(b)(1)(A)(ii).).

AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY
United States v. Martinez-Garcia, 625 F.3d 196 (5th Cir. Oct. 27, 2010) (Georgia conviction of burglary, in violation of Ga.Code Ann. 16-7-1(a), constituted the Guidelines' enumerated crime of violence of burglary of a dwelling, for purposes of illegal reentry sentencing, because the term dwelling within the Georgia burglary statute comports with the ordinary, common meaning of that term, and does not now -- though it once did -- include structures within the cartilage); distinguishing United States v. Gomez-Guerra, 485 F.3d 301, 303-304 (5th Cir. 2007) (The ordinary, contemporary, common meaning of burglary of a dwelling does not extend to the grounds around the dwelling, and demands an entry into or remaining in the dwelling. . . . If a state burglary statute may be violated by entry only into the curtilage, a conviction under that statute is not a crime of violence. [internal quotes omitted]).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION TO COMMITT ASSAULT
United States v. Mendez-Casarez, 624 F.3d 233 (5th Cir. Oct. 15, 2010) (North Carolina conviction of solicitation to commit assault with a deadly weapon inflicting serious injury, in violation of the common-law definition of North Carolina law, see State v. Richardson, 100 N.C.App. 240, 395 S.E.2d 143, 147-48 (1990), constituted a crime of violence for illegal reentry sentencing purposes, because the list of predicate crimes of violence was not exhaustive; solicitation is sufficiently similar to conspiracy, which is one of the enumerated offenses in the list; the list was not subject to rule of lenity; the non-exhaustive interpretation did not render Guideline vague); United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir. 2006) (Arizona conviction for solicitation to commit burglary of a dwelling constituted a crime of violence for the purposes of U.S.S.G. 2L1.2(b)(1)(A)(ii)); United States v. Shumate, 329 F.3d 1026, 1031 (9th Cir.2003) (Oregon conviction for solicitation of delivery of cocaine constituted a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a), which includes aiding and abetting, conspiring, and attempting to commit such an offense, U.S.S.G. 4B1.2 cmt. n. 1); United States v. Dolt, 27 F.3d 235, 240 (6th Cir.1994) (Florida conviction for solicitation to traffic in cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)); see United States v. Liranzo, 944 F.2d 73, 79 (2d Cir.1991) (New York conviction for criminal facilitation of the sale of cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF PIPE BOMB
United States v. Schmidt, 623 F.3d 257 (5th Cir. Oct. 7, 2010) (federal violation of 18 U.S.C. 922(u), possession of a pipe bomb, is a violent felony for purposes of the Armed Career Criminal Act).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF SAWED OFF SHOTGUN
United States v. Lipscomb, 619 F.3d 474 (5th Cir. Sept. 13, 2010) (federal conviction for possession of a sawed-off shotgun, in violation of 18 USC 922(g) is a crime of violence for purposes of Armed Career Offender Act sentencing, since possession of a sawed-off shotgun creates a serious potential risk of physical injury).

AGGRAVATED FELONY - CRIME OF VIOLENCE - INJURY OF CHILD
United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. Jun. 8, 2010) (Texas conviction for injury to child, in violation of Texas Penal Code 22.04(a), did not constitute a crime of violence, for illegal re-entry sentencing purposes, since it does not require use of force; Texas Penal Code 22.04(a) can be committed, for example, "by intentional act without the use of physical force by putting poison or another harmful substance in a child's food or drink.").

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SEXUAL ASSAULT OF A CHILD
United States v. Castro-Guevarra, 575 F.3d 550 (5th Cir. Jul. 13, 2009) (Texas conviction for sexual assault of a child younger than 17 years of age, in violation of Penal Code 22.011(a)(2)(A), (c)(1), constituted a conviction for sexual abuse of a minor, and thus a crime of violence for illegal re-entry sentencing purposes); accord, United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006) (Tex. Penal Code 22.011(a)(2) falls within the U.S.S.G. 2L1.2(b)(1)(A)(ii) enhancement as the enumerated offense of sexual abuse of a minor); United States v. Ayala, 542 F.3d 494 (5th Cir. 2008) (Texas conviction of indecency with a "child" in which a "child" is under 17 years old constitutes sexual abuse of a minor under U.S.S.G 2L1.2 cmt. n.1(B)(iii)); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000); United States v. Najera-Najera, 519 F.3d 509, 511 (5th Cir. 2008).

AGGRAVATED FELONY - CRIME OF VIOLENCE - UNLAWFUL WOUNDING
Singh v. Holder, 568 F.3d 525 (5th Cir. May 14, 2009) (Virginia conviction of unlawful wounding, under Virginia Code 18.2-51 ["maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill"] is an aggravated felony crime of violence under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for purposes of barring naturalization under INA 101(f)(8), 8 U.S.C. 1101(f)(8)).

NOTE: the Fifth Circuit here found the conviction was a "crime of violence" because the petitioner did not suggest any ways in which the offense would not be a crime of violence, failing to meet the requirements of Duenas and James.

AGGRAVATED FELONY - CRIME OF VIOLENCE - EVADING ARREST
United States v. Harrimon, 568 F.3d 531 (5th Cir. May 14, 2009) (Texas conviction for evading arrest or detention by use of a vehicle, in violation of Tex. Penal Code section 38.04(b)(1), is a "violent felony" under the Armed Career Criminal Act, since the offense presents a serious potential risk of physical injury to another).

AGGRAVATED FELONY - CRIME OF VIOLENCE - RAPE
United States v. Gomez-Gomez, 547 F.3d 242. (5th Cir. Oct. 21, 2008) (en banc) (California conviction of rape, under Penal Code 261(a)(2) (1991) [sexual intercourse "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another."], where duress encompassed "a direct or implied threat of ... hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities." Cal. Penal Code 261(b), committed using nonphysical force, qualifies as a "forcible sex offense" and thereby a "crime of violence" under U.S.S.G. 2L1.2(b)(1)(A), sufficient to support 16-level sentence enhancement for illegal reentry after deportation).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Constante, 544 F.3d 584 (5th Cir. Oct. 6, 2008) (Texas conviction for burglary, in violation of Texas Penal Code 30.02(a)(3) [enters a building or habitation and commits or attempts to commit a felony, theft, or an assault] did not constitute a crime of violence for ACCA purposes where statute of conviction does not require specific intent).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Cardenas-Cardenas, 543 F.3d 731 (5th Cir. Sept. 25, 2008) (Texas conviction for burglary of a habitation, in violation of Texas Penal Code 30.02(a)(1), is a crime of violence for illegal re-entry purposes, since the offense is equivalent to "residential burglary."

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING - ELEMENTS DID NOT NECESSARILY REQUIRE USE OF FORCE
United States v. Moreno-Florean, 542 F.3d 445 (5th Cir. Sept. 8, 2008) (California conviction for kidnapping, in violation of California Penal Code 207(a) is not necessarily a crime of violence for illegal re-entry sentencing purposes, since the statute can be violated without the use of physical force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - FORCIBLE SEXUAL CONTACT
United States v. Rosas-Pulido , 526 F.3d 829 (5th Cir. May 2, 2008) (Minnesota conviction for unlawful sexual contact, in violation of M.S.A. 609.345(1)(c), punishing use of "force or coercion to accomplish" sexual contact is not a "forcible" sex offense for illegal re-entry sentencing purposes as the minimum conduct punishable under the statute includes a 14 year old giving a nipple twister to a classmate, an offense that does not involve forcible compulsion), citing In Re DLK, 381 N.W.2d 435, 436 (Minn. 1986) (nipple twister case).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - INDECENCY WITH A CHILD
United States v. Najera-Najera, 519 F.3d 509 (5th Cir. Mar. 7, 2008) (Texas conviction for indecency with a child, in violation of Texas Penal Code 21.11(a)(1), constitutes a "crime of violence" for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Tellez-Martinez, 517 F.3d 813 (5th Cir. Feb. 19, 2008) (California conviction of robbery, in violation of Penal Code 211, constitutes a crime of violence for sentencing purposes, rejecting argument that the state conviction does not constitute a crime of violence because it may be violated not only by the use of force but also by threats to property: "Although Tellez maintains that a conviction under the California robbery statute is not a crime of violence because the statute criminalizes threats to property as well as persons, his assertion is based on a misunderstanding of the essential language of the statute defining robbery as a crime committed: (1) directly against the victim or in his presence; and (2) against his will. Like the Texas statute at issue in Santiesteban-Hernandez, the California robbery statute involves the misappropriation of property under circumstances involving danger to the person. 469 F.3d at 380. Regardless of how the robbery occurs, that danger is inherent in the criminal act. Thus, even when the statute is violated by placing the victim in fear of injury to property, the property has been misappropriated in circumstances "involving [immediate] danger to the person." Id. (alteration in original).").).

AGGRAVATED FELONY - CRIME OF VIOLENCE - GRAND THEFT
United States v. Hawley, __ F.3d __, 2008 WL 239442 (5th Cir. Jan. 30, 2008) (California conviction for grand theft from a person, in violation of California Penal Code 487(2) is a "violent felony" for purposes of the Armed Career Criminal Act, as an offense that presents a serious potential risk of physical injury to another.)

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH INTENT TO COMMIT A FELONY
United States v. Rojas-Gutierrez, 510 F.3d 545 (5th Cir. Dec. 13, 2007) (California conviction of assault with intent to commit certain enumerated felonies, including mayhem, rape, sodomy and oral copulation, in violation of Penal Code 220(a), constituted a "crime of violence" for illegal re-entry sentencing purposes, since the ordinary, contemporary, and common meaning of aggravated assault includes "assault with intent to commit a felony.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - INJURY TO CHILD
Perez-Munoz v. Keisler, 507 F.3d 357 (5th Cir. Nov. 6, 2007) (Texas conviction for injury of a child, in violation of Texas Penal Code 22.04(a)(3), is an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for immigration purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Neri-Hernandes, 504 F.3d 587 (5th Cir. Oct. 12, 2007) (New York conviction for attempted assault, in violation of N.Y. McKinney's Penal Law 120.05, is categorically a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Neri-Hernandes, 504 F.3d 587 (5th Cir. Oct. 12, 2007) (New York conviction for attempted assault, in violation of N.Y. McKinney's Penal Law 120.05, is categorically a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CHILD MOLESTATION
United States v. Beliew, 492 F.3d 314 (5th Cir. Jul. 5, 2007) (Louisiana conviction for child molestation, in violation of L.S.A.-R.S. 14:81.2(A), is a crime of violence for Armed Career Criminal Act purposes, as a "forcible sex offense" since it requires as an element, "force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or ... use of influence by virtue of a position of control or supervision over the juvenile"; finding that use of influence over juvenile was "constructive" use of force.)

AGGRAVATED FELONY - CRIME OF VIOLENCE - BANK ROBBERY
United States v. Dentler, 492 F.3d 306 (5th Cir. No. Jul. 3, 2007) (federal conviction in violation of 18 U.S.C. 2113(a), of attempted entry of a bank with intent to commit robbery, is not a crime of violence for Armed Career Criminal Act sentencing provisions).

AGGRAVATED FELONY - CRIME OF VIOLENCE - JOYRIDING
Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. Mar 19, 2007) (Texas violation of Penal Code 31.07(a), unauthorized use of a vehicle is a "crime of violence" and thus an "aggravated felony").

Note: The Fifth Circuit conceded that the "joyriding" involved no actual use of force. The Fifth Circuit reasoned, however, that joyriding carries a "substantial risk" that the vehicle might be broken into, stripped, or vandalized, or that it might become involved in an accident, resulting not only in damage to vehicle and other property, but in personal injuries to innocent victims as well.

AGGRAVATED FELONY - CRIME OF VIOLENCE - FIREARMS - POSSESSION OF DEADLY WEAPON IN PENAL INSTITUTION
United States v. Rodriguez-Jaimes, __ F.3d __ (5th Cir. March 09, 2007) (Texas conviction for possession of a deadly weapon in a penal institution, in violation of Texas Penal Code 46.10(a)(2) is a crime of violence for Armed Career Criminal Act sentencing purposes, since it involves a serious potential risk of physical injury). http://caselaw.lp.findlaw.com/data2/circs/5th/0640281cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH DEADLY WEAPON
United States v. Dominguez, __ F.3d __, 2007 WL 441885 (5th Cir. Feb. 12, 2007) (Florida conviction for assault with a deadly weapon, in violation of Florida Statutes 784.045(1)(a), is a crime of violence for illegal re-entry sentencing purposes; although under that statute, an aggravated battery could be committed by merely touching someone with a deadly weapon without the use of force, such touching created a sufficient threat of force to qualify as a crime of violence).

AGGRAVATED FELONY - CRIME OF VIOLENCE - UNAUTHORIZED USE OF MOTOR VEHICLE
De La Paz Sanchez v. Gonzales, ___ F.3d ___ (5th Cir. Dec. 12, 2006) (per curiam) (Texas conviction of unauthorized use of a motor vehicle offense constitutes a crime of violence under 18 U.S.C. 16(b) for removal purposes), following United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999); see In re Brieva-Perez, 23 I. & N. Dec. 766, 767-70 (BIA 2005) (Texas UUMV conviction was a crime of violence under 16(b) and therefore an aggravated felony); cf. United States v. Charles, 301 F.3d 309, 314 (5th Cir.2002) (en banc) (limiting Galvan-Rodriguez to its property aspects and to 16(b) cases). http://caselaw.lp.findlaw.com/data2/circs/5th/0560973cv0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ASSAULT
United States v. Martinez-Vega, __ F.3d __ (5th Cir. Nov. 29, 2006) (Texas conviction for sexual assault of a child under 17, in violation of Texas Penal Code 22.011, is a "crime of violence" as "sexual abuse of a minor" for illegal re-entry sentencing purposes, especially where noncitizen defendant admitted before criminal judge that all facts in PSR were correct [i.e. that he sexually abused his 14 year old daughter]). http://caselaw.lp.findlaw.com/data2/circs/5th/0541498cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Garcia, __ F.3d __ (5th Cir. Nov. 22, 2006) (Colorado conviction for third-degree assault, in violation of Colo. Rev. Stat. 18-3-204, is not a crime of violence as defined under U.S.S.G. section 4B1.2(a)(1), for purposes of career offender sentence enhancement purposes, because the statute of conviction does not require use of physical force; mere touching is sufficient). http://caselaw.lp.findlaw.com/data2/circs/5th/0541030cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Villegas-Hernandez, __ F.3d __, 2006 WL 3072558 (5th Cir. Oct. 31, 2006) (Texas conviction for violation of Penal Code 22.01(a), assault, is not an aggravated felony crime of violence for illegal re-entry sentencing purposes since the statute may be violated without the perpetrator using force against the victim). http://caselaw.lp.findlaw.com/data2/circs/5th/0540988cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Santiesteban-Hernandez, __ F.3d __, 2006 WL 3072564 (5th Cir. Oct. 31, 2006) (Texas conviction for violation of Penal Code 29.02(a)(1), robbery, is a crime of violence for illegal re-entry sentencing purposes, since the "crime of violence" definition, U.S.S.G. 2L1.2(b)(1)(A)(ii), specifically includes "robbery" convictions, and the Texas offense falls within the generic definition of "robbery" [requiring theft and immediate danger to a person]).
http://caselaw.lp.findlaw.com/data2/circs/5th/0550399cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - TEXAS DEADLY CONDUCT
United States v. Hernandez-Rodriguez, ___ F.3d ___ (5th Cir. Oct. 10, 2006) (Texas conviction of "deadly conduct," as defined in Tex. Penal Code 22.05(b)(1) [knowingly discharge a firearm in the direction of a person] constitutes a crime of violence for purposes of imposing a 16-level sentence enhancement under U.S.S.G. 2L1.2(b), because the offense has an element the threatened use of physical force).
http://caselaw.lp.findlaw.com/data2/circs/5th/0551429cr0p.pdf

CRIME OF VIOLENCE - ASSAULT ON POLICE OFFICER
United States v. Fierro-Reyna, __ F.3d __ (5th Cir. Sept. 28, 2006) (Texas conviction from 1979 for aggravated assault on a police officer, in violation of Penal Code § 22.02(a)(2) (1974) [punishing simple assault on a police officer] is not a "crime of violence" for illegal re-entry sentencing purposes, since simple assault does not necessarily require use of force; state classification of assault as 'aggravated' because it is committed against a police officer is irrelevant).

CRIME OF VIOLENCE - AGGRAVATED BATTERY WITH DEADLY WEAPON
United States v. Velasco, ___ F.3d ___, 2006 WL 2729670 (5th Cir. Sept. 27, 2006) (Illinois conviction for aggravated battery, under 720 IL. COMP. STAT. 5/12-4(a), (b)(1) (1995) ["aggravated battery" in this case, according to the indictment, occurred when "[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement" by use of a deadly weapon other than by the discharge of a firearm], was a "crime of violence" warranting 16-level enhancement of defendant's sentence for illegal reentry, under USSG § 2L1.2(b)(1)(A), since "use" of a deadly weapon to cause bodily harm is sufficient to require use of force against the person of another, and the indictment was included in the record of conviction).

CRIME OF VIOLENCE - AGGRAVATED BATTERY
Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (Kansas conviction of aggravated battery under Kan. Stat. Ann. 21-3414(a)(1)(C), defined as intentional physical contact with a deadly weapon in a rude, insulting or angry manner defines a crime which is categorically a "crime of violence," under 18 U.S.C. § 16(b) and thus an aggravated felony for removal purposes).

CRIME OF VIOLENCE
Andrade v. Gonzales, __ F.3d __ (5th Cir. Aug. 1, 2006) (Massachusetts conviction of battery, in violation of Mass. Gen. Laws Ch. 265, § 13A, although divisible, is found in this case to be an aggravated felony crime of violence under INA § 101(a)(43)(F), as falling under 18 U.S.C. § 16(a), where the conviction "also concerned a violation of a domestic abuse protective order.")

CRIME OF VIOLENCE - RESIDENTIAL BURGLARY
United States v. Mendoza-Sanchez, ___ F.3d ___, 2006 WL 1966655 (5th Cir. Jul. 14, 2006) (Arkansas conviction of burglary, in violation of Ark.Code Ann. 5-39-201(a), constituted enumerated offense of "burglary of a dwelling," justifying application of sentencing guideline's 16-level crime of violence enhancement; although the record of conviction did not show burglary of a dwelling, defendant admitted to district court in illegal re-entry prosecution that offense was, in fact, burglary of a dwelling).

CRIME OF VIOLENCE - THIRD DEGREE CRIMINAL SEXUAL CONDUCT
United States v. Fernandez-Cusco, __ F.3d __ (5^th Cir. Apr. 20, 2006) (Minnesota felony conviction for third degree sexual conduct, under Minn. Stat. 8 § 609.344, is not necessarily a "forcible sex offense," and therefore not categorically a crime of violence for illegal re-entry sentencing purposes).

CRIME OF VIOLENCE - BURGLARY
United States v. Valdez-Maltos, __ F.3d __, 2006 WL 766601 (5^th Cir. Mar. 27, 2006) (Texas conviction of burglary of a habitation, is a crime of violence for illegal re-entry sentencing purposes).

CRIME OF VIOLENCE - BURGLARY
United States v. Murillo-Lopez, __ F.3d __ (5^th Cir. Mar. 22, 2006) (California conviction for burglary, in violation of Penal Code § 459, is a crime of violence for purposes of 16-level sentence enhancement upon conviction of illegal re-entry, where defendant admitted, and did not dispute, that he was convicted of burglary of a dwelling, specifically listed as a crime of violence under U.S.S.G. § 2L1.2).

CRIME OF VIOLENCE - ATTEMPTED SEXUAL BATTERY
United States v. Meraz-Enriquez, __ F.3d __, 2006 WL 515477 (5^th Cir. Mar. 3, 2006) (Kansas conviction of attempted sexual battery, in violation of Kan. Stat. Ann. § 21- 3518, which punishes a sexual touching of a person who is too intoxicated to be able to give consent to the touching, is not a crime of violence for illegal re-entry sentencing purposes because the offense does not require the use of force).

CRIME OF VIOLENCE - FALSE IMPRISONMENT
United States v. Stapleton, 440 F.3d 700 (5th Cir. Feb. 16, 2006) (Louisiana conviction for false imprisonment while armed with a dangerous weapon, in violation of La. Rev. Stat. Ann § 14:46.1(A) is a violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e), because it necessarily presents a serious potential risk of physical injury to another).

CRIME OF VIOLENCE - SECOND-DEGREE ASSAULT
United States v. Torres-Diaz, 438 F.3d 529 (5th Cir. Jan. 30, 2006) (Connecticut conviction of second-degree assault under Conn. Gen.Stat. § 53a-60(a)(2) ("with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm"), with a five-year suspended sentence, constituted a conviction of "aggravated assault" as used in U.S.S.G. § 2L1.2 n.1(B)(iii), and is thus a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for purposes of imposing a 16-level enhancement of sentence for illegal re-entry, because the offense of conviction tracks the Model Penal Code definition of "aggravated assault" almost exactly).

CRIME OF VIOLENCE - AGGRAVATED BATTERY
United States v. Gonzalez-Chavez, 432 F.3d 334 (5th Cir. Nov. 30, 2005) (Florida conviction of aggravated battery under § 784.045 of the Florida Statutes is divisible, as the statute may be violated by any assault on a pregnant woman, including spitting, which does not involve the use, attempted use, or threatened use of force, and therefore may not be an aggravated felony crime of violence for sentencing purposes).

CRIME OF VIOLENCE - ASSAULT
Gonzalez-Garcia v. Gonzales, 431 F.3d 234 (5th Cir. Nov. 16, 2005) (Texas conviction of assault, in violation of Tex. Penal Code § 22.01(a)(3) ("intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative"), did not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since "offensive or provocative contact" does not necessarily involve the use of physical force).

CRIME OF VIOLENCE - SHOOTING INTO OCCUPIED DWELLING
United States v. Alfaro, 408 F.3d 204 (5th Cir. Apr. 28, 2005) (Virginia conviction of shooting into an occupied dwelling, in violation of Va.Code § 18.202-79 (1993), did not constitute a crime of violence for purposes of enhancing sentence for illegal re-entry by sixteen levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii), because (a) this offense is not enumerated in the Guideline, and (b) it does not have as an element the use or threat of force against another, since a defendant could violate this statute merely by shooting a gun at a building that happens to be occupied or by discharging a firearm within an unoccupied school building, without actually shooting, attempting to shoot, or threatening to shoot another person).

CRIME OF VIOLENCE - RETALIATION
United States v. Martinez-Mata, 393 F.3d 625 (5th Cir. Dec. 10, 2004) (Texas conviction of retaliation under Texas Penal Code § 36.06 is not a crime of violence for illegal re-entry sentencing purposes since it does not have, as an element, the use, attempted use, or threatened use of physical force).

CRIME OF VIOLENCE - JOYRIDING
United States v. Rodriquez-Rodriguez, 388 F.3d 466 (5th Cir. Oct. 15, 2004) (Texas conviction under Penal Code § 31.07(a), unauthorized use of a motor vehicle, is not a crime of violence for illegal re-entry sentencing purposes since the statute does not require the use of force as an element).

CRIME OF VIOLENCE - BURGLARY
United States v. Rodriquez-Rodriguez, 388 F.3d 466 (5th Cir. Oct. 15, 2004) (Texas conviction under Penal Code § 30.02, burglary of a building, is not a crime of violence for illegal re-entry sentencing purposes since the statute does not require the use of force as an element).

CRIME OF VIOLENCE - CRIMINALLY NEGLIGENT HOMICIDE
United States v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. Sept. 22, 2004) (Texas conviction of criminally negligent homicide, under Tex. Penal Code § 19.05, did not constitute crime of violence aggravated felony under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for purposes of a 16-level enhancement of sentence for illegal re-entry, since it does not include as an element the intentional "use, attempted use, or threatened use" of force and it is not one of the offenses enumerated in the Guidelines or its equivalent because it does not require the mens rea of recklessness which is required for manslaughter).

CRIME OF VIOLENCE - TERRORIST THREATS
United States v. Acuna-Cuadros, 385 F.3d 875 (5th Cir. Sept. 21, 2004) (per curiam) (Texas conviction for retaliation, in violation of Tex. Penal Code § 36.06 (1995), penalizing one who "knowingly harms or threatens to harm another by an unlawful act," did not qualify as "crime of violence" supporting 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), since the offense does not "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another").

CRIME OF VIOLENCE - TERRORISTIC THREATS
United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. Aug. 4, 2004) (Pennsylvania conviction for terroristic threats, in violation of 18 Pa. Cons. Stat. § 2706(a) (2003), was not established to be a crime of violence, under U.S.S.G. § 2L1.2, comment (b)(ii)(I), for purposes of enhancing the sentence for illegal re-entry, since the offense is not on the list in (II) and the record does not establish that it "has as an element the use, attempted use, or threatened use of physical force against [the person of] another.").

CRIME OF VIOLENCE - AGGRAVATED STALKING
United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004) (Florida conviction of aggravated stalking (after being subject to a domestic violence protective order, "knowingly, willfully, maliciously, and repeatedly follows or harasses another person"), in violation of Florida Statute § 784.048(4) (1993), did not constitute a crime of violence within the meaning of U.S.S.G. § 4B1.1, for federal sentencing purposes, where harassment is defined as "engag[ing] in a course of conduct directed at a specific person that causes substantial emotional distress in such person . . . ," under Fla. Stat. Ann. § 784.048(1)(a), because the aggravated stalking statute can be violated without the use or threatened use of physical force, and the additional information provided in the aggravated stalking indictment about the underlying injunction does not allege conduct which, by its nature, poses a serious potential risk of physical injury).

CRIME OF VIOLENCE - SEXUAL BATTERY
Zaidi v. Ashcroft, 374 F.3d 357 (5th Cir. June 21, 2004) (Oklahoma conviction for sexual battery ("the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner and without the consent of that other person . . . ."), in violation of Okla. Stat. Ann. tit. 21, § 1123(B), constituted a "crime of violence," as defined in 18 U.S.C. § 16(b), and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), rendering the noncitizen subject to removal, under INA § 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), because the unconsented touching created a substantial risk that force would be used to complete the offense, and consequently the court of appeal lacked jurisdiction to review the final order of removal).

CRIME OF VIOLENCE - SEXUAL ASSAULT
United States v. Sarmiento-Funes, 374 F.3d 336 (5th Cir. June 21, 2004) (Missouri conviction of sexual assault, in violation of Mo. Ann. Stat. § 566.040(1) committed if "he has sexual intercourse with another person knowing that he does so without that persons consent," did not qualify as a crime of violence under U.S.S.G. § 2L1.2 cmt. n.1(B)(ii), for purposes of 16-level enhancement of sentence for illegal re-entry).

CRIME OF VIOLENCE - DRIVE-BY SHOOTING - FACILITATION
Nguyen v. Ashcroft, 366 F.3d 386 (5th Cir. Apr. 26, 2004) (Oklahoma conviction for facilitation of a drive-by shooting, under 21 Okl.St.Ann. § 652, subd. B., constituted a crime of violence aggravated felony for deportation purposes).

CRIME OF VIOLENCE - INTOXICATION ASSAULT
United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. Jan. 8, 2004) (en banc) (Texas conviction of intoxication assault - "by accident or mistake, while operating an aircraft, watercraft or motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another." - in violation of Tex. Penal Code § 49.07, did not constitute a crime of violence, and so was not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of a 16-level sentence enhancement for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii), Application Note 1(B)(ii)(I) (2001), because the crime of violence definition requires that the defendant must intentionally avail him- or herself of the use, attempted use, or threatened use of physical force against the person of another, and that this must be an element of the predicate offense).

CRIME OF VIOLENCE - CHILD ENDANGERMENT
United States v. Calderon-Pena, 339 F.3d 320 (5th Cir. July 17, 2003) (Texas conviction of child endangerment, in violation of Texas Penal Code § 22.041(c), would not on its face constitute a crime of violence under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2000, 2001), since it may be committed by omission; however, since the indictment in this case shows the elements involved in this particular conviction necessarily included placing a child in imminent danger of bodily injury through an intentional act, it did constitute a crime of violence in the instant case).

CRIME OF VIOLENCE - POSSESSION OF SAWED-OFF SHOTGUN
United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. Apr. 3, 2003) (Texas conviction for possession of a prohibited weapon - a short-barrel firearm - in violation of Tex. Penal Code § 46.05, did not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of a 16-level sentence enhancement for illegal re-entry pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(iii) (2000), since there is no element or substantial risk that force will be used in the commission of the offense).

CRIME OF VIOLENCE - POSSESSION OF DEADLY WEAPON
United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. Mar. 24, 2003) (California conviction of possession of a deadly weapon a dirk or dagger in violation of Penal Code § 12020(a), does not constitute a "crime of violence" within the meaning of 18 U.S.C. § 16(b), because there is no substantial risk that an offender may use violence to perpetrate the weapon possession offense, and it therefore does not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2).

CRIME OF VIOLENCE - UNAUTHORIZED USE OF MOTOR VEHICLE
United States v. Rodriguez-Rodriguez, 323 F.3d 317 (5th Cir. Feb. 27, 2003) (Texas conviction of unauthorized use of a motor vehicle, in violation of Texas Penal Code Ann. § 30.02(a), is not a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the offense is not listed in Application Note 1(B)(ii)(II) and does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

CRIME OF VIOLENCE - BURGLARY OF BUILDING
United States v. Rodriguez-Rodriguez, 323 F.3d 317 (5th Cir. Feb. 27, 2003) (Texas conviction of burglary of a building, in violation of Texas Penal Code Ann. § 31.07(a), is not a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the offense is not listed in Application Note 1(B)(ii)(II) and does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

CRIME OF VIOLENCE - INTOXICATION ASSAULT
United States v. Vargas-Duran, 319 F.3d 194 (5th Cir. Jan. 16, 2003) (Texas conviction for intoxication assault, which requires proof that an intoxicated offender "cause[] serious bodily injury to another," in violation of Penal Code Ann. § 49.07, qualified as a "crime of violence," for purposes of the 16-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2001), because it has as an element the use of force against the person of another), overruled on rehearing en banc, 356 F.3d 598 (5th Cir. Jan. 8, 2004) (en banc), cert. denied, 125 S.Ct. 494 (2004).

CRIME OF VIOLENCE - AGGRAVATED SEXUAL ASSAULT ON MINOR UNDER
14 United States v. Rayo-Valdez, 302 F.3d 314 (5th Cir. Aug. 12, 2002) (Texas conviction for aggravated sexual assault on a minor under 14, in violation of Texas Penal Code § 22.021, constituted a crime of violence, and was thus an aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), to enhance a sentence under U.S.S.G. § 2L1.2 for illegal re-entry).

CRIME OF VIOLENCE - INJURY TO CHILD
United States v. Gracia-Cantu, 302 F.3d 308 (5th Cir. Aug. 9, 2002) (Texas conviction of injury to child, in violation of Texas Penal Code § 22.04(a), was not "crime of violence," and so did not qualify as an "aggravated felony" under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for illegal re-entry sentence enhancement purposes).

CRIME OF VIOLENCE - AUTO THEFT
United States v. Charles, 301 F.3d 309 (5th Cir. July 31, 2002) (en banc) (Texas conviction of simple motor vehicle theft was not a crime of violence under U.S.S.G. § 4B1.2(a)(2) for federal firearm offense sentencing purposes, since the indictment did not suggest the offense involved a serious potential risk of injury to a person; note that this definition of "crime of violence" differs from the definition contained in 18 U.S.C. § 16(b)), vacating in part 275 F.3d 468 (5th Cir. Dec. 10, 2001), and overruling United States v. Jackson, 220 F.3d 635 (5th Cir. July 26, 2000).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
United States v. Cervantes-Nava, 281 F.3d 501 (5th Cir. Feb. 4, 2002), cert. denied, 122 S.Ct. 2379 (2002) (Texas conviction of driving while intoxicated was not a crime of violence aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), warranting increase in base offense level for illegal re-entry offense).

CRIME OF VIOLENCE - ASSAULT WITH BODILY INJURY
United States v. Urias-Escobar, 281 F.3d 165 (5th Cir. Jan. 23, 2002), cert. denied, 122 S.Ct. 2377 (2002) (Texas conviction for misdemeanor assault with bodily injury, with one year suspended sentence imposed, was an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) that warranted an enhanced sentence under U.S.S.G. § 2L1.2 for illegal re-entry).

CRIME OF VIOLENCE - UNLAWFULLY CARRYING FIREARM
United States v. Hernandez-Neave, 291 F.3d 296 (5th Cir. Dec. 21, 2001) (Texas conviction for unlawfully carrying firearm in place licensed to sell alcoholic beverages, in violation of Penal Code § 46.02(c), was not a crime of violence for illegal re-entry sentencing purposes).

CRIME OF VIOLENCE - AUTO THEFT
United States v. Charles, 275 F.3d 468 (5th Cir. Dec. 10, 2001) (conviction of vehicle theft was "crime of violence" under special guideline for offense presenting "serious potential risk of injury to another," different from illegal re-entry Guidelines, governing enhancement to sentence for ex-felon in possession of firearm conviction), vacated in part upon en banc rehearing, 301 F.3d 309 (5th Cir. July 31, 2002).

CRIME OF VIOLENCE - CRIMINAL MISCHIEF
United States v. Landeros-Gonzales, 262 F.3d 424 (5th Cir. Aug. 14, 2001) (Texas conviction for violation of "criminal mischief" statute, for the intentional marking of anothers property, in violation of Texas Penal Code § 28.03(a)(1-3), was not a "crime of violence" and, consequently, was not an "aggravated felony" warranting an enhanced sentence under U.S.S.G. § 2L1.2 for illegal re-entry, since it does not "by its nature, involve[] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" under 18 U.S.C. § 16(b)).

CRIME OF VIOLENCE - MENACING
United States v. Landeros-Arreola, 260 F.3d 407 (5th Cir. July 27, 2001) (Colorado reduction of sentence imposed for menacing conviction, after successful completion of Colorados Regimented Inmate Training Program, from four years imprisonment to probation, was not mere suspension of execution of sentence, but effectively reduced custody term below one year, so state menacing conviction did not constitute crime of violence "aggravated felony" conviction, with one year sentence imposed, under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), and no longer was sufficient to trigger a sentence enhancement of an illegal re-entry sentence).

CRIME OF VIOLENCE - POSSESSION OF SHORT-BARRELED SHOTGUN
United States v. Rivas-Palacios, 244 F.3d 396 (5th Cir. Mar. 9, 2001) (Texas conviction for unlawful possession of an unregistered short-barreled shotgun is an aggravated felony crime of violence for illegal re-entry sentencing purposes), following United States v. Dunn, 946 F.2d 615, 620-21 (9th Cir. 1991), cert. denied, 502 U.S. 950, 112 S.Ct. 401 (1991) (involving a sawed-off shotgun).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. Mar. 1, 2001), rehearing and rehearing en banc denied, 262 F.3d 479 (5th Cir. Aug. 20, 2001) (Texas conviction for felony driving while intoxicated, under Tex. Penal Code § 49.09 (providing that after two convictions for violating § 49.04, subsequent convictions are third-degree felonies), was not an aggravated felony crime of violence for sentencing purposes, because intentional force against the person or property of another is seldom, if ever, employed to commit the offense).

CRIME OF VIOLENCE - AUTO BURGLARY
Santos v. Reno, 228 F.3d 591 (5th Cir. Sept. 26, 2000) (Texas conviction of burglary of vehicle, in violation of Texas Penal Code § 30.04(c), with sentence of five years deferred adjudication, constituted crime of violence and was therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for purposes of deportation).

CRIME OF VIOLENCE - UNAUTHORIZED USE OF VEHICLE
United States v. Jackson, 220 F.3d 635 (5th Cir. July 26, 2000), cert. denied, 532 U.S. 988, 121 S.Ct. 1640 (2001) (Texas conviction of unauthorized use of a vehicle, in violation of Texas Penal Code § 31.07, was a "crime of violence" as that term is defined in U.S.S.G. § 4B1.2, which is different from the language of 18 U.S.C. § 16), overruled by United States v. Charles, 301 F.3d 309 (5th Cir. July 31, 2002) (en banc).

CRIME OF VIOLENCE - AUTO BURGLARY
Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. May 1, 2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757 (2001) (Texas conviction of burglary of vehicle with intent to commit theft, in violation of Tex. Penal Code § 30.04(a) (West 1987), with suspended sentence of four years imprisonment, was a "crime of violence," and therefore an aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir. Mar. 20, 2000) (New Mexico convictions of misdemeanor offenses of driving while intoxicated, prior to deportation, qualified as "crimes of violence," to justify four-level increase in offense level under U.S.S.G. § 2L1.2(b)(1)(B)(ii) ("three or more misdemeanor crimes of violence or misdemeanor controlled substance offenses, increase by 4 levels") for subsequent illegal re-entry offense), rehearing and suggestion for rehearing en banc denied, 213 F.3d 640 (5th Cir. Apr. 18, 2000) (Table).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
Camacho-Marroquin v. INS, 188 F.3d 649 (5th Cir. Sept. 29, 1999) (Texas conviction of felony offense of driving while intoxicated was crime of violence and aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes), opinion withdrawn, rehearing dismissed by Camacho-Marroquin v. INS, 222 F.3d 1040 (5th Cir. July 11, 2000).

CRIME OF VIOLENCE - TRESPASS
United States v. Delgado-Enriquez, 188 F.3d 592 (5th Cir. Sept. 10, 1999) (Colorado conviction of first-degree criminal trespass by one who "knowingly and unlawfully enters or remains in a dwelling or if he enters any motor vehicle with intent to steal anything of value" in violation of Colo.Rev.Stat. Ann. § 18-4-502, was crime of violence under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) and 18 U.S.C. § 16(b), warranting 16-level enhancement of sentence under U.S.S.G. § 2L1.2(b)(1)(A) for illegal re-entry, since entering or remaining in a dwelling of another creates a substantial risk that physical force will be used against the residents in the dwelling).

CRIME OF VIOLENCE - UNAUTHORIZED USE OF MOTOR VEHICLE
United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. Mar. 4, 1999), cert. denied, 528 U.S. 837 (1999) (conviction of unauthorized use of motor vehicle is "crime of violence," and therefore an aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. 16(b), for purposes sentence enhancement under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry).

CRIME OF VIOLENCE - INDECENCY WITH CHILD
United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. Nov. 15, 1996), cert. denied, 520 U.S. 1133 (1997) (Texas convictions of indecency with child involving sexual contact, in violation of Penal Code § 21.11(a)(1), were crimes of violence, and so constituted aggravated felonies under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) warranting 16-level increase in illegal re-entry base offense level pursuant to U.S.S.G. § 2L1.2(b)(2)).

CRIME OF VIOLENCE - AUTO BURGLARY
United States v. Ramos-Garcia, 95 F.3d 369 (5th Cir. Sept. 5, 1996), cert. denied, 519 U.S. 1083 (1997) (Texas conviction for burglary of vehicle in violation of Penal Code § 30.04 (1993) was an "aggravated felony " under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) within meaning of U.S.S.G. § 2L1.2(b) sentence enhancement for illegal re-entry after deportation, despite change in Texas law, Texas Penal Code Ann. § 30.04 (1994), reducing burglary of vehicle from felony to misdemeanor).

CRIME OF VIOLENCE - AUTO BURGLARY
United States v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. June 6, 1995) (Texas conviction for burglary of automobile, in violation of Texas Penal Code § 30.04 (1994), was a crime of violence, as defined in 18 U.S.C. § 16(b), constituting an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of sentencing enhancement under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry after deportation), overruled by United States v. Turner, 305 F.3d 349 (5th Cir. Sept. 6, 2002) (Rodriguez decision improperly applied 18 U.S.C. § 16 definition of crime of violence in sentencing context).

CRIME OF VIOLENCE - COMMERCIAL BURGLARY
United States v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. June 6, 1995) (Texas conviction for burglary of nonresidential building in violation of Texas Penal Code § 30.02 (1994), was a crime of violence, as defined in 18 U.S.C. § 16(b), constituting an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of sentencing enhancement under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry after deportation), overruled by United States v. Turner, 305 F.3d 349 (5th Cir. Sept. 6, 2002) (Rodriguez decision improperly applied 18 U.S.C. § 16 definition of crime of violence in sentencing context).

CRIME OF VIOLENCE - BURGLARY OF DWELLING
United States v. Guadardo, 40 F.3d 102 (5th Cir. Dec. 2, 1994) (Texas conviction of burglary of habitation in violation of Texas Penal Code § 30.02 was a crime of violence, as defined in 18 U.S.C. § 16(b), constituting an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of sentencing enhancement under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry after deportation).

Sixth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. McMurray, 653 F.3d 367 (6th Cir. Aug 4, 2011) (Tennessee conviction of aggravated assault, in violation of Tenn.Code Ann. 39"13"102 (1991), was not a violent felony under the ACCAs use of physical force clause, or under its residual clause, for purposes of the Armed Career Criminal Act, where the offense could be committed recklessly).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ATTEMPTED KIDNAPPING
United States v. Soto-Sanchez, 623 F.3d 317 (6th Cir. Oct. 5, 2010) (Michigan conviction of attempted kidnapping, in violation of M.C.L.A. 750.349, constituted a crime of violence under U.S.S.G. 2L1.2(b)(1)(A), for illegal re-entry sentencing purposes, since all six offenses punished by the kidnapping statute either fall within the generic, contemporary meaning of kidnapping or have an element involving the use of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL BATTERY
United States v. Wynn, 579 F.3d 567 (6th Cir. Sept. 2, 2009) (Ohio conviction for violation of Ohio R.C. 2907.03, sexual battery, is not categorically a "crime of violence" for career offender sentencing purposes, since some subsections of the statute do not necessarily require the use of violent force, but only lack of consent, which may only require lack of lawful ability to consent).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
Thap v. Mukasey, 544 F.3d 674 (6th Cir. Oct. 15, 2008) (California conviction of second-degree robbery, in violation of Penal Code 211, constitutes an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) and 18 U.S.C. 16(b), since by its nature there is a substantial risk that physical force will be used in its commission, even though the elements require only force rather than physical force).

CRIME OF VIOLENCE - SEXUAL ABUSE OF MINOR
Patel v. Ashcroft, 401 F.3d 400 (6th Cir. Mar. 8, 2005) (Illinois conviction of criminal sexual abuse, in violation of 720 Ill. Comp. Stat. § 5/12-15, constituted a crime of violence under 18 U.S.C. § 16(b), and was therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), "because of the disparate ages of the defendant and the victim, or the mental incapacity or physical helplessness of the victim, or the defendants position of authority over the victim, the crime, semper et ubique, includes a substantial risk of physical force.").

CRIME OF VIOLENCE - ASSAULT WITH INTENT TO COMMIT SEXUAL BATTERY
United States v. Arnold, 58 F.3d 1117, 1122 n. 4 (6th Cir. July 13, 1995) (Tennessee conviction for assault with intent to commit sexual battery is not categorically a "crime of violence" for purposes of 18 U.S.C. § 922(g)(1) (felon with a firearm) because the minimum conduct of the offense can be committed through force or coercion).

Seventh Circuit

AGGRAVATED FELONY " CRIMES OF VIOLENCE " COMMITTING FELONY WHILE ARMED
Brown v. Rios, 696 F.3d 638, *644 (No. 11-1695) (7th Cir. Aug. 20, 2012) (armed violence, defined as "committing any felony defined by Illinois Law while armed," did not qualify as a Violent Felony when the underlying felony consisted of simple possession of drugs; while there is evidence of a connection between Congresss attempt to keep firearms away from habitual drug users and its goal of reducing violent crime, United States v. Yancey, 621 F.3d 681, 686 (7th Cir. 2010), it has not been shown that the mere possession of a gun by a drug user . . . can be described as purposeful, violent, or aggressive conduct within the meaning of Begay.).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " AGGRAVATED SEXUAL ABUSE
United States v. Sandoval Ramirez, ___ F.3d ___, 2011 WL 2864417 (7th Cir. Jul. 20, 2011) (Illinois conviction for aggravated criminal sexual abuse, in violation of 720 ILCS 5/12"16(d), qualified as sexual abuse of a minor, within the enumerated offenses of the crime of violence definition, for purposes of imposing a 16"level illegal reentry sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), since all of the different offenses within that statute constitute intentional acts of a sexual nature against a minor).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED BATTERY
United States v. Aviles-Solarzano, 623 F.3d 470, 472-473 (7th Cir. Oct. 13, 2010) (Illinois conviction of aggravated battery, under 720 ILCS 5/12-4(b), is not categorically a crime of violence, within the meaning of U.S.S.G. 2L1.2(b)(1)(A)(ii), since Illinois aggravated battery may include non-violent offenses, such as spitting on another person while standing on a sidewalk).

AGGRAVATED FELONY - CRIME OF VIOLENCE - DISCHARGE OF FIREARM
Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. Nov. 21, 2008) (Indiana conviction for criminal recklessness, in violation of Indiana Code 35-42-2-2(c)(3) [shooting a firearm into an inhabited dwelling], is not an aggravated felony crime of violence since recklessness is insufficient to find conviction of a crime of violence).

AGGRAVATED FELONY - CRIME OF VIOLENCE - DOMESTIC BATTERY
LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. May 20, 2008) (per curiam) (Illinois conviction of domestic battery, in violation of 720 ILCS 5/12-3.2(a)(1) ["[a] person commits domestic battery if he intentionally or knowingly without legal justification by any means: (1) Causes bodily harm to any family or household member."], constituted a crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), and 18 U.S.C. 16(a), for deportation purposes, because, as 16(a) requires, it has as an element the use of physical force."), following United States v. Upton, 512 F.3d 394, 405 (7th Cir. 2008) ("This provision of the statute unambiguously requires proving physical force: to sustain his conviction for domestic battery, the state had to prove that he [c]ause[d] bodily harm, which means that it had as an element the use ... of physical force against the person of another..").

AGGRAVATED FELONY - CRIME OF VIOLENCE - BATTERY
LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. May 20, 2008) (Illinois conviction of domestic battery, in violation of 720 ILCS 5/12-3.2(a)(1) ["intentionally or knowingly without legal justification by any means: (1) Causes bodily harm to any family or household member."], qualifies as a crime of violence under 18 U.S.C. 16(a), and therefore under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because, as 16(a) requires, it has as an element the use of physical force), following United States v. Upton, 512 F.3d 394, 405 (7th Cir. 2008) ("This provision of the statute unambiguously requires proving physical force: to sustain his conviction for domestic battery, the state had to prove that he [c]ause[d] bodily harm, which means that it had as an element the use ... of physical force against the person of another.").

The reasoning of Upton, however, is incorrect. There is a great difference between the element of causing bodily harm and the requirement of the use of physical force, in particular violent physical force. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004); see N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 5.19 (2006).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION
United States v. Pacheco-Diaz, ___ F.3d ___, 2008 WL 220692 (7th Cir. Jan. 29, 2008) (opinion on denial of rehearing) (Illinois second conviction of simple possession of marijuana constitutes a drug trafficking aggravated felony, within the meaning of 8 U.S.C. 1101(a)(43), for purposes of imposing a sentence enhancement for illegal reentry under USSG 2L1.2(b)(1)(C), because 21 U.S.C. 844(a) treats possessing marijuana that way if the defendant already has one marijuana-possession conviction on his record), disagreeing with Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007) (state marijuana-possession offense is an aggravated felony under 1101(a)(43) only if the noncitizen was charged as a recidivist in state court).

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING BY PARENT
United States v. Franco-Fernandez, 511 F.3d 768 (7th Cir. Jan. 2, 2008) (Illinois offense of "putative father" child abduction, in violation of 720 ILL. COMP. STAT. 5/10-5(b)(3), is neither a crime of violence nor an aggravated felony for purposes of the increased offense levels specified in U.S.S.G. 2L1.2(b)(1)(A)(ii) and (b)(1)(C) for illegal reentry after deportation).

CRIME OF VIOLENCE - DISCHARGE OF A FIREARM
Quezada-Luna v. Gonzalez, __ F.3d __, 2006 WL 508716 (7^th Cir. Mar. 3, 2006) (Illinois conviction of aggravated discharge of a firearm, in violation of 720 ILCS § 5/24-1.2(a)(1), is an aggravated felony crime of violence for immigration purposes, because the offense required discharge of firearm into a building with reasonable knowledge that building was occupied, and therefore involved substantial risk of physical force against the person or property of another).

CRIME OF VIOLENCE - DISCHARGING A FIREARM
United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. May 4, 2005) (Wisconsin conviction for discharging a firearm into a vehicle or building, in violation of W.S.A. § 941.20(2)(a), was not a conviction for a "crime of violence" so as to warrant a 16-level increase in the offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for illegal re-entry, since the elements of the offense of conviction did not require that the trier of fact conclude that defendant used or threatened use of physical force against the person of another).

CRIME OF VIOLENCE - HARASSMENT
Szucz-Toldy v. Gonzalez, 400 F.3d 978 (7th Cir. Mar. 11, 2005) (Illinois conviction for "harassment by telephone" under 720 ILCS § 135/1-1(2), prohibiting "making a telephone call, whether or not conversation ensues, with intent to abuse, threaten or harass any person at the called number," is not an aggravated felony crime of violence for immigration purposes because it is not necessary to prove the use or threatened use of physical force to sustain a conviction under the statute).

CRIME OF VIOLENCE - BURGLARY
United States v. Alvarez-Martinez, 286 F.3d 470 (7th Cir. Apr. 12, 2002) (Illinois burglary conviction, in violation of 720 ILCS § 5/19-1(a), was a crime of violence under 18 U.S.C. § 16(b), and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of sentence enhancement under U.S.S.G. § 2L1.2 for unlawful re-entry, even though the statute was divisible, since defendants acquiescence to the pre-sentence report amounted to implied stipulation that he broke into vehicle, thus using force against property).

CRIME OF VIOLENCE - VEHICULAR HOMICIDE BY INTOXICATION
Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. July 5, 2001) (Wisconsin conviction for homicide by intoxicated use of vehicle, in violation of Wis.St.1996, § 940.09, was not an aggravated felony crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for deportation purposes, since offense required that offender actually hit someone, but did not require that he intentionally use force to achieve that result).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. July 5, 2001) (Illinois conviction for felony drunk driving under 625 Ill. Comp. Stat. § 5/11-501(d)(1), because of two prior DUI convictions, was not "crime of violence" under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for deportation purposes).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
Bazan-Reyes v. INS, 256 F.3d 600, 603 (7th Cir. July 5, 2001) (Indiana conviction of a Class D felony, Operating a Vehicle While Intoxicated, with prior convictions, in violation of section 9-30-5-3 of the Indiana Code, with a sentence to three years imprisonment, was not an aggravated felony "crime of violence" under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for deportation purposes, since offense but did not require that the defendant intentionally use force).

CRIME OF VIOLENCE - SEXUAL ASSAULT ON CHILD
United States v. Martinez-Carillo, 250 F.3d 1101 (7th Cir. May 17, 2001), cert. denied, 122 S.Ct. 285 (2001) (Illinois conviction for criminal sexual assault in violation of 720 ILCS § 5/12-13(a)(3), for inserting finger into daughters vagina, who was thirteen years old at the time, was a "crime of violence" for purposes of disqualifying defendant from downward departure of sentence for illegal re-entry based on minor nature of aggravated felony conviction).

CRIME OF VIOLENCE - STATUTORY RAPE
Xiong v. INS, 173 F.3d 601 (7th Cir. Apr. 12, 1999) (Wisconsin conviction of "sexual contact or sexual intercourse with a person who has not attained the age of 16 years," in violation of W.S.A. § 948.02(2), was not a "crime of violence," and thus was not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for deportation purposes, where conduct on which conviction was based consisted of consensual sex between 18-year-old boyfriend and his 15-year-old girlfriend).

Eighth Circuit

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " OBSTRUCTION OF LEGAL PROCESS
Ortiz v. Lynch, __ F.3d __ (8th Cir. Aug. 6, 2015) (Minnesota conviction for violation of Minn.Stat. 609.50, subd. 2(2), obstruction of legal process, is not an aggravated felony crime of violence under 8 U.S.C. 1101(a)(43)(F), INA 101(a)(43)(F), since the minimum amount of force required to sustain a conviction under the obstruction of legal process is not violent force as required by 18 U.S.C. 16).

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD-DEGREE ASSAULT
Roberts v. Holder, 745 F.3d 928 (8th Cir. Mar. 20, 2014) (Minnesota conviction for third-degree assault, under Minn.Stat. 609.223 subd. 1, 609.02 subd. 10. [assault of another, (2) that inflicts substantial bodily harm. Minn.Stat. 609.223 subd. 1. Assault is defined as (1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.], constituted a crime of violence aggravated felony, because the ordinary case of third-degree assault involve[s] the intentional use of physical force against another, so it has as an element the use, attempted use, or threatened use of physical force); quoting United States v. Salean, 583 F.3d 1059, 1060 (8th Cir.2009) (Minnesota conviction of fourth-degree assault constituted violent felony within the ACCA based on a virtually identical definition).

AGGRAVATED FELONY " CRIME OF VIOLENCE " MANSLAUGHTER
United States v. Roblero-Ramirez, ___ F.3d ___, 2013 WL 2927916 (8th Cir. Jun. 17, 2013) (Nebraska conviction for violation of Neb.Rev.St. 28-305, sudden quarrel manslaughter, is not an aggravated felony crime of violence for illegal re-entry sentencing purposes where the statute does not require intent to kill).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " SECOND-DEGREE BATTERY
United States v. Dawn, 685 F.3d 790 (8th Cir. Jun. 28, 2012) (Arkansas conviction of second-degree battery, in violation of Ark. Code Ann. 5"13"202(a) (2006), is not categorically a crime of violence for purposes of the Armed Career Criminals Act, because it includes recklessly causing serious physical injury, including reckless driving).

AGGRAVATED FELONY - CRIME OF VIOLENCE - TERRORISTIC THREATS
Olmsted v. Holder, 588 F.3d 556 (8th Cir. Dec. 4, 2009) (Minnesota conviction of making terroristic threats, in violation of Minn. Stat. 609.713(1) is a divisible statute, since it may be committed recklessly).

AGGRAVATED FELONY - CRIMES OF VIOLENCE - ASSAULT ON POLICE OFFICER
United States v. Reyes-Solano, F.3d 543 F.3d 474 (8th Cir. Sept. 26, 2008) (Mississippi convictions for domestic assault and assault on a police officer were not categorically "crimes of violence" (defined as including twelve enumerated offenses (none at issue in this case), "or any other federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another."), so as to justify a four-level sentence enhancement under USSG 2L1.2(b)(1)(E) for illegal reentry after deportation, because "Absent state court records identifying the offense of conviction, from which the elements of that offense may be determined, the testimony of Reyes-Solano at sentencing is not sufficient proof that actual, attempted, or threatened use of force was an element of the offense and not merely conduct incidental to an offense whose essential elements did not include the use of force. Accordingly, on this record the four-level increase under 2L1.2(b)(1)(E) was improperly imposed.")

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code 21.11(a)(1) not categorically sexual abuse of a minor for illegal re-entry sentencing purposes; "Subsection (a)(1), then, prohibits consensual sexual contact between two persons who are a day under 17, and of the same gender. This does not fit the ordinary, contemporary, common meaning of sexual abuse of a minor.")

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code 21.11, is sexual abuse of a minor for illegal re-entry sentencing purposes where indictment indicated that minor was under the age of seventeen and the defendant was at least 8 years older).

AGGRAVATED FELONYMANSLAUGHTER - 18 U.S.C. 16(a) - MINNESOTA CONVICTION FOR SECOND-DEGREE MANSLAUGHTER NOT A COV SINCE NO ELEMENT OF USE OF FORCE
United States v. Torres-Villalobos, 487 F.3d 607, ___, (8th Cir. May 9, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn.Stat. 609.205, did not qualify as crime of violence, under 18 U.S.C. 16(a), and is therefore not an "aggravated felony," under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since it does not have as an essential element the intentional use of force: "Under Minnesota law, a person can commit second-degree manslaughter without using force or risking the intentional use of force. Minn.Stat. 609.205. A person can commit this crime by recklessly leaving a child alone with lit candles that later start a fire, State v. Boyer, No. C8-01-617, 2001 WL 1491450, at * 1 (Minn.Ct.App. Nov. 27, 2001), by allowing a child to die of dehydration while in the person's care, State v. Williams, No. A04-1694, 2005 WL 3046328, at * 1 (Minn.Ct.App. Nov. 15, 2005), by leaving explosives and blasting caps stored in an automobile where they are later ignited by the use of jumper cables, State v. Bicek, 429 N.W.2d 289, 291 (Minn.Ct.App.1988), and, indeed, by driving drunk with "culpable negligence" in a manner that causes the death of a passenger. State v. Geary, 239 N.W. 158, 159-60 (Minn.1931). As such, the "use of force," as Leocal interpreted that phrase, is not an element of a second-degree manslaughter conviction."), overruling United States v. Moore, 38 F.3d 977, 981 (8th Cir. 1994) (decided under 18 U.S.C. 924(c)(3)); see also Omar v. INS, 298 F.3d 710, 715-17 (8th Cir. 2002) (holding that criminal vehicular homicide is a crime of violence under 16 for immigration purposes).

AGGRAVATED FELONYMANSLAUGHTER - 18 U.S.C. 16(b) - MINNESOTA CONVICTION FOR SECOND-DEGREE MANSLAUGHTER NOT A COV SINCE NO SUBSTANTIAL RISK THAT THE ACTOR WILL INTENTIONALLY USE FORCE IN THE COMMISSION OF THE OFFENSE
United States v. Torres-Villalobos, 487 F.3d 607, ___, (8th Cir. May 9, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn.Stat. 609.205, did not qualify as crime of violence, under 18 U.S.C. 16(b), and is therefore not an "aggravated felony," under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since it does not "involve a risk that the perpetrator will intentionally use physical force in the course of committing the offense. A perpetrator's knowing disregard of a serious risk of injury, as required by the Minnesota manslaughter statute, is different from a robber or burglar ignoring the risk that he may resort to the intentional use of force in committing the offense."), overruling United States v. Moore, 38 F.3d 977, 981 (8th Cir. 1994) (decided under 18 U.S.C. 924(c)(3)); see also Omar v. INS, 298 F.3d 710, 715-17 (8th Cir. 2002) (holding that criminal vehicular homicide is a crime of violence under 16 for immigration purposes).

AGGRAVATED FELONY - MANSLAUGHTER - CRIME OF VIOLENCE
United States v. Torres-Villalobos, __ F.3d __, 2007 WL 528195 (8th Cir. Feb. 22, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn. Stat. 609.205, was not a "crime of violence" under 18 U.S.C. 16 because the offense can be committed with mere reckless intent). http://caselaw.lp.findlaw.com/data2/circs/8th/061876p.pdf

CRIME OF VIOLENCE - LASCIVIOUS ACTS WITH A CHILD
United States v. Garcia-Juarez, 421 F.3d 655 (8th Cir. Aug. 29, 2005) (Iowa conviction of lascivious acts with a child, in violation of Iowa Code § 709.8, is an aggravated felony crime of violence both for immigration and sentencing purposes).

CRIME OF VIOLENCE - AUTOMOBILE HOMICIDE
United States v. Gonzalez-Lopez, 335 F.3d 793 (8th Cir. July 14, 2003) (Utah conviction of automobile homicide, in violation of Utah Code Ann. § 76-5-207(1), held to be a crime of violence for purposes of illegal re-entry 16-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1), since the Utah offense has as an element the use of physical force against another, irrespective of the predicate offenses mens rea element; no argument made that specific offense of conviction did not require use of force).

CRIME OF VIOLENCE - ROBBERY
United States v. Valladares, 304 F.3d 1300 (8th Cir. Sept. 26, 2002) (California conviction for second-degree robbery under Penal Code § 211 constituted an aggravated felony within meaning of version of Sentencing Guidelines in effect at time of defendants current offense, so that application of amended guideline, which provided for the same increase, did not violate the Ex Post Facto clause).

CRIME OF VIOLENCE - GOING ARMED WITH INTENT
United States v. Gomez-Hernandez, 300 F.3d 974 (8th Cir. Aug. 28, 2002) (Iowa conviction of going armed with intent to use a weapon unlawfully, in violation of Iowa Code § 708.8, is a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), and justifies illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).

CRIME OF VIOLENCE - UNLAWFUL SEX WITH MINOR
United States v. Gomez-Hernandez, 300 F.3d 974 (8th Cir. Aug. 28, 2002) (California conviction of unlawful sexual intercourse with a minor, in violation of California Penal Code § 261.5(d), is a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), and justifies illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).

CRIME OF VIOLENCE - VEHICULAR HOMICIDE
Omar v. INS, 298 F.3d 710 (8th Cir. Aug. 5, 2002) (Minnesota conviction of criminal vehicular homicide, in violation of M.S.A. § 609.21, subd. 1(4), was a crime of violence, and therefore was an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for removal purposes).

CRIME OF VIOLENCE - AUTO BURGLARY
United States v. Guzman-Landeros, 207 F.3d 1034, 1035 (8th Cir. Mar. 27, 2000) (Texas convictions for burglary of vehicle constituted aggravated felonies as crimes of violence under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) to sentence for illegal re-entry).

CRIME OF VIOLENCE - SEXUAL ASSAULT OF CHILD
United States v. Alas-Castro, 184 F.3d 812 (8th Cir. June 26, 1999) (Nebraska conviction for sexual assault of a child, in violation of Neb. Rev. Stat. § 28-320.01(1), was a crime of violence for which term of imprisonment was at least one year, and thus constituted an "aggravated felony" under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) requiring a 16-level enhancement to defendants base offense level under U.S.S.G. § 2L1.2(b)(1)(A) (1998)).

CRIME OF VIOLENCE - ASSAULT
United States v. Smith, 171 F.3d 617 (8th Cir. Mar. 24, 1999) (Iowa conviction of misdemeanor assault, under Iowa Code § 708.1(1), which may be committed by "[a]ny act which is . . . intended to result in physical contact which will be insulting or offensive to another," by necessity, requires physical force to complete, and is thus sufficient physical force to constitute a crime of violence for purposes of 18 U.S.C. § 922(g) (felon with a firearm)).

CRIME OF VIOLENCE - MANSLAUGHTER
United States v. Moore, 38 F.3d 977 (8th Cir. Oct. 24, 1994) (federal conviction of manslaughter is a crime of violence within meaning of federal sentencing statute different from 18 U.S.C. § 16 and the aggravated felony definition contained in INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)).

CRIME OF VIOLENCE - STATUTORY RAPE
United States v. Bauer, 990 F.2d 373 (8th Cir. Apr. 1, 1993) (Iowa conviction of statutory rape constituted crime of violence for purposes of career offender enhancement, regardless whether act was consensual).

CRIME OF VIOLENCE - SEX OFFENSE WITH MINOR
United States v. Rodriguez, 979 F.2d 138 (8th Cir. Nov. 9, 1992) (Iowa conviction of performing lascivious acts with minors, in violation of I.C.A. § 709.8, constituted crime of violence within INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. 16(b), for purposes of enhancing sentence for illegal re-entry).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States v. Jones, 877 F.3d 884 (9th Cir. Dec. 15, 2017) (Arizona conviction for armed robbery, under A.R.S. 13-1904, is not a violent felony for purposes of the ACCA, because Arizona's armed robbery does not require the use of force), following United States v. Molinar, 876 F.3d 953 (9th Cir. 2017).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY United States v. Jones, 877 F.3d 884 (9th Cir. Dec. 15, 2017) (Arizona conviction for armed robbery, under A.R.S. 13-1904, is not a violent felony for purposes of the ACCA, because Arizona's armed robbery does not require the use of force), following United States v. Molinar, 876 F.3d 953 (9th Cir. 2017).

AGGRAVATED FELONY " CRIME OF VIOLENCE " HARASSMENT
United States v. Werle, 877 F.3d 879 (9th Cir. Dec. 13, 2017) (Washington conviction of felony harassment, in violation of R.C.W. 9A.46.020(2)(b)(ii) [knowingly threaten to kill], is a crime of violence for illegal reentry sentencing purposes, even if the threat could be for an indeterminate time in the future and even if it may include a threat to use poison).

AGGRAVATED FELONY " CRIME OF VIOLENCE " HARASSMENT
United States v. Werle, 877 F.3d 879 (9th Cir. Dec. 13, 2017) (Washington conviction of felony harassment, in violation of R.C.W. 9A.46.020(2)(b)(ii) [knowingly threaten to kill], is a crime of violence for illegal reentry sentencing purposes, even if the threat could be for an indeterminate time in the future and even if it may include a threat to use poison).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States vs. Sanchez Molinar, 876 F.3d 953 (9th Cir. Nov. 29, 2017) (Arizona conviction for robbery, in violation of Ariz. Rev. Stat. 13-1904(A), which includes merely possessing a fake gun during the commission of a robbery without mentioning or brandishing it, is not a crime of violence for purposes of the ACCA because the minimum conduct necessary to commit the offense is not sufficiently violent for to qualify as a crime of violence under Johnson v. United States, 559 U.S. 133 (2010)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States vs. Sanchez Molinar, 876 F.3d 953 (9th Cir. Nov. 29, 2017) (Arizona conviction for robbery, in violation of Ariz. Rev. Stat. 13-1904(A), which includes merely possessing a fake gun during the commission of a robbery without mentioning or brandishing it, is not a crime of violence for purposes of the ACCA because the minimum conduct necessary to commit the offense is not sufficiently violent for to qualify as a crime of violence under Johnson v. United States, 559 U.S. 133 (2010)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " VOLUNTARY MANSLAUGHTER
Quijada-Aguilar v. Lynch, ___ F.3d ___, 2015 WL 5103038 (9th Cir. Sept. 1, 2015) (California conviction for voluntary manslaughter, under Penal Code 192(a), did not qualify as a particularly serious crime that would render noncitizen ineligible for withholding of removal, since it did not constitute an aggravated felony crime of violence, because it encompassed reckless conduct).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
United States v. Jimenez-Arzate, ___ F.3d ___ (9th Cir. Mar. 30, 2015) (amending and superseding opinion denying rehearing en banc) (California conviction for violation of Penal Code 245(a)(1) is categorically a crime of violence for federal sentencing purposes, since United States v. Grajeda, which held that a conviction under section 245(a)(1) is categorically a crime of violence, is still good law even in light of People v. Aznavoleh, 210 Cal.App.4th 1181 (2012), and People v. Wyatt, 48 Cal.4th 776 (2010), which do not hold that assault with a deadly weapon may be committed with reckless intent; a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. Wyatt, at 159 (quoting People v. Williams, 26 Cal.4th 779 (2001)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
United States v. Jimenez-Arzate, ___ F.3d ___, 2015 WL 149802 (9th Cir. Jan. 12, 2015) (per curiam) (California conviction for assault with deadly weapon, in violation of Penal Code 245(a)(1), was categorically a crime of violence, for federal sentencing purposes, rejecting the argument that the California courts have weakened the intent requirement to recklessness, which involves insufficient intent to qualify, so United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009), is no longer good law in light of People v. Aznavoleh, 210 Cal.App.4th 1181, 148 Cal.Rptr.3d 901, 904 (2012), and People v. Wyatt, 48 Cal.4th 776, 108 Cal.Rptr.3d 259, 229 P.3d 156, 157 (2010)). The court reasoned: We disagree. Aznavoleh involved a defendant who intentionally ran a red light while racing another car down the street even though he saw a car entering the intersection on the green. The defendant made no effort to stop despite a passenger warning him that he needed to stop. The California Court of Appeal upheld the trial court's finding that the defendant met the willfulness element of assault under California Penal Code 245(a)(1), which the California Court of Appeal defined as intentionality. Wyatt involved a father who, while play wrestling with his infant son, struck the boy with such force that he killed him. [Citation omitted.] The Wyatt court upheld the father's conviction for involuntary manslaughter and assault on a child causing death because substantial evidence established that defendant knew he was striking his young son with his fist, forearm, knee, and elbow, and that he used an amount of force a reasonable person would realize was likely to result in great bodily injury. Id. As did the California Court of Appeal in Aznavoleh, the California Supreme Court in Wyatt explained that a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. Id. at 159 (quoting People v. Williams, 26 Cal.4th 779, 111 Cal.Rptr.2d 114, 29 P.3d 197, 203 (2001)). Contrary to Jimenez"Arzate's argument, Aznavoleh did not hold that an automobile accident stemming from merely reckless driving may result in a conviction under 245(a)(1). The defendant in Aznavoleh engaged in street racing, heedlessly disregarding a perceived likelihood of death or grave injury to others. Likewise, in Wyatt, a reasonable person would have recognized the dangers of striking a child with the deadly force used, even if the defendant was not subjectively aware of the risks of his play wrestling with the child in that manner. (Id. at ___.)

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States v. Prince, __ F.3d __ (9th Cir. Nov. 24, 2014) (California conviction for violation of Penal Code 211, robbery, is a violent felony under the residual clause for purposes of the Armed Career Criminals Act, as an offense that poses a serious risk of physical injury to another).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " EVADING AN OFFICER
United States v. Martinez, 771 F.3d 672 (9th Cir. Nov. 14, 2014) (California conviction under Vehicle Code 2800.2 for vehicle flight from a pursuing peace officer, was a "violent felony" under the ACCA's residual clause, 18 U.S.C. 924(e)(2)(B)(ii)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT ON OFFICER
United States v. Dominguez-Maroyoqui, 748 F.3d 918 (9th Cir. Apr. 7, 2014) (federal conviction for assaulting a federal officer, in violation of 18 U.S.C. 111(a), is not categorically a crime of violence for illegal re-entry sentencing purposes, since the offense does not require, as an element, proof that defendant used, attempted to use, or threatened to use physical force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD AND LASIVIOUS BATTERY
United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. Dec. 23, 2013) (Florida conviction for "lewd and lascivious battery," in violation of Florida Statutes 800.04(4)(a) [[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age.], did not categorically constitute a crime of violence for illegal reentry sentencing purposes, since lack of consent is not an element of the crime; nor is the statute divisible, so the modified categorical analysis cannot be employed); United States v. Gomez"Mendez, 486 F.3d 599, 604 (9th Cir. 2007) (Florida conviction of lewd and lascivious battery, in violation of Fla. Stat. 800.04(4)(a) is a strict liability crime[,] criminalizing [e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age, ibid., regardless of whether the victim, in fact, consents); see United States v. Rangel"Castaneda, 709 F.3d 373, 376 (4th Cir.2013) (Tennessee conviction of sexual penetration ... when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least ten (10) years older than the victim. did not categorically constitute a crime of violence as a forcible sex offense under the guidelines because the fact that Tennessee law renders the consent of a statutory rape victim formally irrelevant does not mean that the offense necessarily requires sexual conduct that is forcible ..."that is, involving actual compulsion.); The court reasoned: First, the absence of a consent defense to statutory rape is analytically distinct from situations in which a victim's consent ... is [deemed] not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The three examples cited by the Sentencing Commission, see supra at pp. 1054"55, involve instances in which the victim does not in fact have the state of mind of willing acquiescence"either because her consent is coerced, or because her actual state of mind is such that she is not capable of willingly consenting, as in the case of incompetence or intoxication. We have acknowledged, however, that the assumption that a minor's legal incapacity implies that the proscribed sexual intercourse is non-consensual does not always hold true[.] Valencia v. Gonzales, 439 F.3d 1046, 1051 (9th Cir.2006). Some minors are able to engage in sexual intercourse voluntarily, despite being legally incapable of consent. Id. In other words, because statutory rape is a strict liability crime, the minor's actual state of mind does not matter, nor does the minor's actual capacity for mature deliberation. . The term statutory rape is ordinarily, contemporarily, and commonly understood to mean the unlawful sexual intercourse with a minor under the age of consent specified by state statute. Gomez"Mendez, 486 F.3d at 603. If all sex offenses where consent ... is not legally valid on the basis of age are, by definition, forcible, there would be no need to separately enumerate statutory rape. See U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The same would be true of sexual abuse of a minor, whereby we define the term abuse ... in light of the age of the victim in question, United States v. Medina"Villa, 567 F.3d 507, 513 (9th Cir.2009), and have held that [s]exual conduct with younger children is per se abusive[,] Valencia"Barragan, 608 F.3d at 1107. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant. Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (citations and quotation marks omitted). This basic interpretive canon [,] id., applies to the Sentencing Guidelines. See United States v. Wenner, 351 F.3d 969, 974"75 (9th Cir.2003). Yet, when asked at argument, the government could identify no circumstance in which a statutory rape would not also be a forcible sex offense under its interpretation. Nor can we. It is our duty to give effect, if possible, to every clause and word of a statute. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (citations and quotation marks omitted). We are reluctan[t] to treat ... as surplusage, id., the Guidelines' enumeration of statutory rape and sexual abuse of a minor as separate crimes of violence. Third, deeming as forcible sex offenses all sexual acts with persons under the age of majority would ignore contemporary limitations on the concept of statutory rape. In particular, there has been a move among the states to reform statutory rape laws in cases involving partners of a similar age"for instance, foreclosing prosecutions of 16"year"olds for heavy petting with 14"year"olds, or reducing sentences of 19"year"olds for sexual intercourse with 17"year"olds. See, e.g., Charles A. Phipps, Misdirected Reform: On Regulating Consensual Sexual Activity Between Teenagers, 12 Cornell J.L. & Pub. Pol'y 373, 390"91 (2003). In recognition of this growing consensus, we have held that, for federal purposes, an age difference of at least four years is an element of sexual abuse of a minor, Estrada"Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir.2008) (en banc), and of statutory rape as well, United States v. Gomez, 732 F.3d 971, 988"89 (9th Cir.2013). Reading the term forcible sex offenses"which requires no age difference"to encompass all sexual conduct with minors, would obliterate those limitations. A so-called Romeo"and"Juliet offender[,] Doe v. Mich. Dep't of State Police, 490 F.3d 491, 503 (6th Cir.2007), could be deemed to have been convicted of a forcible sex offense by virtue of the victim's age, despite being expressly and intentionally excluded from the generic federal definitions of statutory rape and sexual abuse of a minor. (Ibid. at 1055-1056.)

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD CONDUCT
United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. Dec. 23, 2013) (Florida conviction for "lewd and lascivious battery," in violation of Florida Statutes 800.04(4)(a), [[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age.], did not categorically constitute a forcible sex offense, and thus cannot be a crime of violence as defined under the federal sentencing guidelines).

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD AND LASIVIOUS BATTERY
United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. Dec. 23, 2013) (Florida conviction for "lewd and lascivious battery," in violation of Florida Statutes 800.04(4)(a) [[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age.], did not categorically constitute a crime of violence for illegal reentry sentencing purposes, since lack of consent is not an element of the crime; nor is the statute divisible, so the modified categorical analysis cannot be employed); United States v. Gomez"Mendez, 486 F.3d 599, 604 (9th Cir. 2007) (Florida conviction of lewd and lascivious battery, in violation of Fla. Stat. 800.04(4)(a) is a strict liability crime[,] criminalizing [e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age, ibid., regardless of whether the victim, in fact, consents); see United States v. Rangel"Castaneda, 709 F.3d 373, 376 (4th Cir.2013) (Tennessee conviction of sexual penetration ... when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least ten (10) years older than the victim. did not categorically constitute a crime of violence as a forcible sex offense under the guidelines because the fact that Tennessee law renders the consent of a statutory rape victim formally irrelevant does not mean that the offense necessarily requires sexual conduct that is forcible ..."that is, involving actual compulsion.); The court reasoned: First, the absence of a consent defense to statutory rape is analytically distinct from situations in which a victim's consent ... is [deemed] not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The three examples cited by the Sentencing Commission, see supra at pp. 1054"55, involve instances in which the victim does not in fact have the state of mind of willing acquiescence"either because her consent is coerced, or because her actual state of mind is such that she is not capable of willingly consenting, as in the case of incompetence or intoxication. We have acknowledged, however, that the assumption that a minor's legal incapacity implies that the proscribed sexual intercourse is non-consensual does not always hold true[.] Valencia v. Gonzales, 439 F.3d 1046, 1051 (9th Cir.2006). Some minors are able to engage in sexual intercourse voluntarily, despite being legally incapable of consent. Id. In other words, because statutory rape is a strict liability crime, the minor's actual state of mind does not matter, nor does the minor's actual capacity for mature deliberation. . The term statutory rape is ordinarily, contemporarily, and commonly understood to mean the unlawful sexual intercourse with a minor under the age of consent specified by state statute. Gomez"Mendez, 486 F.3d at 603. If all sex offenses where consent ... is not legally valid on the basis of age are, by definition, forcible, there would be no need to separately enumerate statutory rape. See U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The same would be true of sexual abuse of a minor, whereby we define the term abuse ... in light of the age of the victim in question, United States v. Medina"Villa, 567 F.3d 507, 513 (9th Cir.2009), and have held that [s]exual conduct with younger children is per se abusive[,] Valencia"Barragan, 608 F.3d at 1107. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant. Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (citations and quotation marks omitted). This basic interpretive canon [,] id., applies to the Sentencing Guidelines. See United States v. Wenner, 351 F.3d 969, 974"75 (9th Cir.2003). Yet, when asked at argument, the government could identify no circumstance in which a statutory rape would not also be a forcible sex offense under its interpretation. Nor can we. It is our duty to give effect, if possible, to every clause and word of a statute. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (citations and quotation marks omitted). We are reluctan[t] to treat ... as surplusage, id., the Guidelines' enumeration of statutory rape and sexual abuse of a minor as separate crimes of violence. Third, deeming as forcible sex offenses all sexual acts with persons under the age of majority would ignore contemporary limitations on the concept of statutory rape. In particular, there has been a move among the states to reform statutory rape laws in cases involving partners of a similar age"for instance, foreclosing prosecutions of 16"year"olds for heavy petting with 14"year"olds, or reducing sentences of 19"year"olds for sexual intercourse with 17"year"olds. See, e.g., Charles A. Phipps, Misdirected Reform: On Regulating Consensual Sexual Activity Between Teenagers, 12 Cornell J.L. & Pub. Pol'y 373, 390"91 (2003). In recognition of this growing consensus, we have held that, for federal purposes, an age difference of at least four years is an element of sexual abuse of a minor, Estrada"Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir.2008) (en banc), and of statutory rape as well, United States v. Gomez, 732 F.3d 971, 988"89 (9th Cir.2013). Reading the term forcible sex offenses"which requires no age difference"to encompass all sexual conduct with minors, would obliterate those limitations. A so-called Romeo"and"Juliet offender[,] Doe v. Mich. Dep't of State Police, 490 F.3d 491, 503 (6th Cir.2007), could be deemed to have been convicted of a forcible sex offense by virtue of the victim's age, despite being expressly and intentionally excluded from the generic federal definitions of statutory rape and sexual abuse of a minor. (Ibid. at 1055-1056.)

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD ACT WITH 15-YEAR-OLD
Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. Oct. 22, 2013) (California conviction for lewd and lascivious acts upon a 15-year-old girl when the actor is at least ten years older, under Penal Code 288(c)(1), is a categorical crime of violence and therefore an aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because this offense, in the ordinary case, poses a substantial risk of the use of physical force under 18 U.S.C. 16(b)). Note: Although not a positive case, the discussion does carefully address prior Ninth Circuit case law and has some very useful analysis distinguishing 18 U.S.C. 16(b), substantial risk analysis from the minimum-conduct analysis required for other portions of the Act, including Sexual Abuse of a Minor, Child Abuse, Domestic Violence, and 18 U.S.C. 16(a). Thanks to Joseph Justin Rollin.

AGGRAVATED FELONY " CRIME OF VIOLENCE " KIDNAPPING
Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th Cir. Oct. 9, 2012) (California conviction for attempted kidnapping under Penal Code 207(a) is categorically an aggravated felony crime of violence, because an ordinary case of kidnapping punished under the statute presents a substantial risk of force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING OFFICER
Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. Jul. 9, 2012) (California conviction of resisting an executive officer in violation of Penal Code 69 is not a categorical crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it requires only use of de minimis force; the idea that resisting executive officer would inevitably lead to use of violent, physical force was speculative).

AGGRAVATED FELONY " CRIME OF VIOLENCE " FIRST DEGREE ASSAULT
United States v. Castillo-Marin, 684 F.3d 914 (9th Cir. Jul. 3, 2012) (New York conviction of assault in the first degree, under New York Penal Law 120.10, was not categorically a crime of violence, for illegal re-entry purposes, because it includes reckless endangerment and causing injury during flight, which do not prohibit only conduct that involves an intent to injure, and may be committed with mere recklessness).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " KIDNAPPING
United States v. Marquez-Lobos, 683 F.3d 1061 (9th Cir. Jun. 19, 2012) (Arizona conviction of kidnapping, under Arizona Revised Statute 13-1304, is affirmed where it categorically meets the generic definition of "crime of violence" in U.S.S.G. 2L1.2(b)(1)(A), for purposes of imposing a 16-level sentence enhancement for illegal reentry).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ATTEMPTED AGGRAVATED ASSAULT
United States v. Gomez-Hernandez, 680 F.3d 1171 (9th Cir. May 31, 2012) (Arizona attempted aggravated assault conviction, for attempting to "intentionally, knowingly or recklessly" cause a physical injury with a deadly weapon is categorically a crime of violence for illegal re-entry sentencing purposes because one cannot "attempt" to commit a reckless act, and therefore the conviction must have involved intent, rather than recklessness).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESIDENTIAL BURGLARY
Kwong v. Holder, ___ F.3d ___, 2011 WL 6061513 (9th Cir. Dec. 7, 2011) (California conviction of first-degree burglary, in violation of Penal Code 459, 460(a), constituted an aggravated felony crime of violence, since the abstract of judgment established the conviction was of first-degree burglary, as defined in Penal Code 460(a) -- burglary of an inhabited dwelling house, vessel ... which is inhabited and designed for habitation, floating home ..., or trailer coach ..., or the inhabited portion of any other building.); following United States v. Becker, 919 F.2d 568, 573 (9th Cir. 1990) (California conviction of first-degree burglary under Penal Code 459 is a crime of violence because it involves a substantial risk that physical force may be used in the course of committing the offense); Lopez"Cardona v. Holder, ___ F.3d ___, 2011 WL 5607634 (9th Cir. Nov. 18, 2011) (California conviction of first-degree burglary, in violation of California Penal Code 459, was a crime of violence within the meaning of 18 U.S.C. 16(b)), distinguishing United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc) (California conviction of first-degree burglary, under Penal Code 459, did not categorically constitute burglary).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESIDENTIAL BURGLARY
Lopez-Cardona v. Holder, ___ F.3d ___, 2011 WL 5607634 (9th Cir. Nov. 10, 2011) (California conviction for residential burglary, in violation of Penal Code 459, constitutes a crime of violence under 18 U.S.C. 16(b), and is therefore a particularly serious crime); see United States v. Becker, 919 F.2d 568 (9th Cir. 1990) (California conviction of first-degree burglary under California Penal Code 459 is categorically a crime of violence under 18 U.S.C. 16(b) because the crime inherently involves a substantial risk of physical force); Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (The reckless disregard in[18 U.S.C.] 16 relates not to the general conduct or to the possibility that harm will result from a person's conduct, but to the risk that the use of physical force against another might be required in committing a crime. The classic example is burglary. A burglary would be covered under 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.) (footnote omitted).

AGGRAVATED FELONY " CRIME OF VIOLENCE " FORCIBLE RAPE
United States v. Ruiz-Apolonio, 657 F.3d 907 (9th Cir. Sept. 14, 2011) (California conviction of forcible rape, under Penal Code 261(a)(2), is categorically a "crime of violence" as defined by the Sentencing Guidelines).

AGGRAVATED FELONY " CRIME OF VIOLENCE " CORPORAL INJURY OF A SPOUSE
United States v. Ayala-Nicanor, 659 F.3d 744 (9th Cir. Sept. 14, 2011) (California conviction of corporal injury of a spouse, under Penal Code 273.5(a), is a categorical crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY " BURGLARY " BURGLARY OF A DWELLING
United States v. Reina-Rodriguez, 655 F.3d 1182 (9th Cir. Sept. 13, 2011) (Utah conviction of second-degree burglary of a dwelling, under Utah Code Ann. 76"6"202(2), did not categorically constitute a burglary of a dwelling crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii) & n.1(B)(iii), because Utah law defined dwelling more broadly than it is defined in the federal Guidelines definition of burglary of a dwelling); following United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir.2007) (en banc) (state statutes do not categorically constitute burglary when they define it to include non-buildings adapted for overnight accommodation; courts must utilize the modified categorical approach to determine whether a dwelling in Utah meets the Guidelines' definition of dwelling.; A non-building adapted for accommodation"e.g., a vehicle or boat"may still qualify as a dwelling under the Guidelines, but it does not do so categorically.).

AGGRAVATED FELONY " CRIME OF VIOLENCE " HIGH SPEED FLIGHT
United States v. Snyder, 643 F.3d 694 (9th Cir. Jun. 30, 2011) (Oregon conviction for high speed flight, in violation of ORS 811.540(1), is a violent felony for purposes of the Armed Career Criminal Act), following Sykes v. United States, ___ U.S. ___, 131 S.Ct. 2267 (Jun. 9, 2011).

AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY
United States v. Park, ___ F.3d ___, 2011 WL 2418906 (9th Cir. Jun. 17, 2011) (California conviction of first-degree burglary, in violation of Penal Code 459, categorically constituted a crime of violence under U.S.S.G. 2K2.1(a) [in that it involves conduct that presents a serious potential risk of physical injury to another . U.S.S.G. 4B1.2(a)] for purposes of the Armed Career Criminal Act).

AGGRAVATED FELONY " CRIME OF VIOLENCE " COERCION
Cortez-Guillen v. Holder, 623 F.3d 933 (9th Cir. Oct. 5, 2010) (Alaska conviction of coercion, in violation of Alaska Statute 11.41.530(a)(1), compelling another to do an act by instilling fear of injury or commission of any other crime, did not categorically constitute a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it could be committed by a threat of a nonviolent crime such as blackmail).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SEXUAL BATTERY
United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. Sept. 10, 2010) (California conviction of sexual battery, in violation of Penal Code 243.4(a), unlawful sexual touching of a restrained person, did not constitute a crime of violence for illegal re-entry sentencing purposes, since the offense may be committed through duress, and without use of force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " PENETRATION WITH FOREIGN OBJECT
United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. Sept. 10, 2010) (California conviction for penetration with a foreign object, in violation of California Penal Code 289(a)(1), does not categorically constitute a crime of violence for illegal re-entry sentencing purposes, since the offense may be committed through duress alone, and without use of force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
Camacho-Cruz v. Holder, 621 F.3d 941 (9th Cir. Sept. 2, 2010) (Nevada conviction of assault with a deadly weapon, under N.R.S. 200.471, which may be violated by putting another in reasonable apprehension of immediate bodily harm, is categorically an aggravated felony crime of violence for immigration purposes).

AGGRAVATED FELONY " CRIME OF VIOLENCE " MENACING
United States v. Melchor-Meceno, 620 F.3d 1180 (9th Cir. Sept. 1, 2010) (Colorado felony conviction of menacing, under C.R.S. 18-3-206, categorically constituted a crime of violence for illegal re-entry sentencing purposes, since it involves a threat of imminent serious bodily injury).

AGGRAVATED FELONIES " CRIME OF VIOLENCE " CORPORAL INJURY OF A SPOUSE
Banuelos-Ayon v. Holder, 611 F.3d 1080, 1084 (9th Cir. Jul. 14, 2010) (California conviction for violation of Penal Code 273.5(a) was categorically a crime of domestic violence, since it requires that the defendant willfully inflict ... corporal injury resulting in a traumatic condition and thus requires the use of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - THREATS
United States v. Villavicencio-Burruel, 608 F.3d 556 (9th Cir. Jun. 14, 2010) (California conviction for violation of Penal Code 422, criminal threats, is categorically a "crime of violence" for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - THEFT
United States v. Alderman, 601 F.3d 949 (9th Cir. Apr. 15, 2010) (Washington conviction for violation of RCW 9A.56.030, theft from the body of a person, was a crime of violence for purposes of the ACCA, because of the risk of use of force in commission of the offense).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CARJACKING
United States v. Velasquez-Bosqe, 601 F.3d 955 (9th Cir. April 15, 2010) (California conviction for violation of Penal Code 215, carjacking, is categorically a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Jennen, ___ F.3d ___, 2010 WL 625041 (9th Cir. Feb. 24, 2010) (Washington conviction of second degree assault with a deadly weapon, in violation of Wash. Rev.Code 9A.36.021(1), was categorically a crime of violence under USSG 4B1.2(a) ("any offense under federal or state law, punishable by imprisonment for a term exceeding one year" that "has as an element the use, attempted use, or threatened use of physical force against the person of another." because each of the three ways the Washington offense could be committed meets the Guidelines definition).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CARJACKING
Nieves-Medrano v. Holder, ___ F.3d ___, 2010 WL 27339 (9th Cir. Jan. 7, 2010) (California conviction of carjacking, in violation of Penal Code 215, with sentence to three years imprisonment, constituted a categorical aggravated felony "crime of violence" under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F): "Although the definition in U.S.S.G. 2L1.2 differs slightly from that used for immigration cases, 8 U.S.C. 1101(a)(43)(F) ("crime of violence" defined by 18 U.S.C. 16), there is no meaningful distinction for purposes of this petition."); following United States v. Becerril-Lopez, 541 F.3d 881, 893 (9th Cir. 2008) ("[W]e hold that a conviction under Cal.Penal Code 211 could only result from conduct that constitutes a 'crime of violence' for purposes of U.S.S .G. 2L1.2.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - CORPORAL INJURY OF A SPOUSE
United States v. Laurico-Yeno, ___ F.3d ___, 2010 WL 6393 (9th Cir. Jan. 4, 2010) (California conviction of corporal injury on a spouse, in violation of Penal Code 273.5(a), constituted a "crime of violence" for illegal re-entry sentencing purposes, because the intentional use of physical force against the person of another is an element of the statute, and the defendant failed to show there was a realistic probability that the statute would be applied to conduct outside the "crime of violence" definition).

NOTE: The petitioner pointed to published California cases that indicated that prosecution under Penal Code 273.5 included simple assaults resulting in a traumatic condition. People v. Gutierrez, 171 Cal.App.3d 944, 217 Cal.Rptr. 616, 620-21 (1985). Although the court cited Leocal for the proposition that the force must be violent, the ultimate decision seemed to rest on the failure of the petitioner to meet the Duenas "realistic probability" test. Counsel may be able to challenge this decision, either by locating a decision that shows application of Penal Code 273.5 in a simple battery context. Counsel may also be able to argue this decision should be reconsidered in light of Johnson v. United States, __ U.S. __ (Mar. 2, 2010) (the use of force must be "violent" in order to constitute a "crime of violence" for purpose of the Armed Career Criminal Act).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH A DEADLY WEAPON - REQUIREMENT OF SUFFICIENT FORCE
United States v. Grajeda, 581 F.3d 1186 (9th Cir. Sept. 21, 2009) (California conviction of assault with a deadly weapon or by means likely to produce great bodily injury, under Penal Code 245(a)(1), categorically constituted a "crime of violence" for purposes of application of a sixteen-level enhancement to the base offense level under the "element" prong of U.S.S.G. 2L1.2(b)(1)(A)(ii), to a sentence for illegal reentry after deportation, since the offense requires sufficient violence because "even the least touching with a deadly weapon or instrument is violent in nature"); accord, United States v. Treto-Martinez, 421 F.3d 1156, 1160 (10th Cir. 2005) (holding that a person who touches another with a deadly weapon in a rude, insulting, or angry manner has threatened use of physical force for purposes of the sentencing enhancement); United States v. Dominguez, 479 F.3d 345, 348-49 (5th Cir. 2007) (holding that the touching of an individual with a deadly weapon creates a sufficient threat of force to qualify as a COV).

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING
Delgado-Hernandez v. Holder, 581 F.3d 1059 (9th Cir. Sept. 9, 2009) (California conviction of kidnapping, in violation of California Penal Code 207(a), constitutes a crime of violence under 18 U.S.C. 16(b), and is thus an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F); kidnapping inherently involves a direct confrontation with a victim who is forced or frightened into being moved involuntarily, which creates a substantial risk of the use of force). NOTE: This decision seems to ignore a form of kidnapping, explicit in the statute, that would not involve a risk of force: "For purposes of those types of kidnapping requiring force, the amount of force required to kidnap a resisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or intent." California Penal Code 207(e).

AGGRAVATED FELONY -CRIME OF VIOLENCE- RISK FORCE WILL BE USED IN COMMISSION OF OFFENSE
Prakash v. Holder, 579 F.3d 1033 (9th Cir. Aug. 26, 2009) (California conviction for violation of Penal Code 653f(c), solicitation to commit rape by force, and Penal Code 653f(a), solicitation to commit assault by force likely to produce great bodily injury, are aggravated felony crimes of violence for immigration purposes, since solicitation of rape by force creates a substantial risk of the use of force). NOTE: Although acknowledging that the solicitation may be committed without use of force, the court dismissed the argument that there was no risk of the use of in the commission of the solicitation, stating,

The words in the statute "in the course of committing the offense" require a causal link between the crime and the physical force-a substantial risk, in this case, that the solicitation of rape and of assault will lead to violence. Those words do not impose a chronological limitation. It is the risk of violence flowing from a given crime that this statute is concerned with, not necessarily when in a chronological sequence the violence occurs. Prakash has not identified any logical reason why violence that might take place a few minutes, hours, or even days after the solicitation to commit rape or assault has been committed should be disregarded, or why the statute should be interpreted in that fashion. We see no reason to do so. . . . Similarly, for the purpose of determining whether the offense of solicitation is a crime of violence, whether there is a substantial risk that physical force will be used in the course of committing the offense properly extends to the intended result of the solicitation.

Id. at 1037. But see United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003); United States v. Fish, 368 F.3d 1200 (9th Cir. 2004) (Oregon conviction for possession of a destructive device not a crime of violence).

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Harris, 572 F.3d 1065 (9th Cir. Jul. 24, 2009) (Nevada convictions for robbery and attempted robbery, in violation of Nevada Revised Statutes, 200.380 categorically qualified as "crimes of violence" under U.S.S.G. 4B1.2, for purposes of aggravated federal sentencing under the ACCA, since any offense punishable under that statute that does not qualify as a "robbery," does qualify as an "extortion."), following United States v. Becerril-Lopez, 541 F.3d 881, 892 (9th Cir.2008).

NOTE: In the aggravated felony context, this case may support an argument that the Nevada statute is not necessary a crime of violence, since "[t]he degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property" N.R.S. 200.380.

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Juvenile Female. 566 F.3d 943 (9th Cir. May 27, 2009) (federal felony conviction of assault on a federal officer [with a deadly weapon, or resulting in bodily injury], in violation of 18 U.S.C. 111, is a "crime of violence" as defined by 18 U.S.C. 16(a), for purposes of the Juvenile Delinquency Act).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH A FIREARM
United States v. Heron-Salinas, 566 F.3d 898 (9th Cir. May 20, 2009) (per curiam) (California conviction of assault with a firearm, under Penal Code 245(a)(2), constituted a crime of violence as defined in 18 U.S.C. 16, for immigration purposes: "The use of a firearm in the commission of the crime is enough to demonstrate that actual force was attempted or threatened under section 16(a). Similarly, one who assaults another by means of a firearm necessarily disregards the substantial risk that in the course of committing the offense he might intentionally use actual physical force against the victim under section 16(b)."); following Ortiz-Magana v. Mukasey, 542 F.3d 653, 654 (9th Cir.2008) (California conviction of aiding and abetting assault with a deadly weapon in violation of Penal Code 245(a)(1) is categorically a crime of violence under 18 U.S.C. 16); Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134-35 (9th Cir.2001) (California conviction of aiding and abetting assault with a deadly weapon in violation of Penal Code 245(a)(1), is an aggravated felon under 8 U.S.C. 1101(a)(43)(F)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED ASSAULT
United States v. Esparza-Herrera, ___ F.3d ___, 2009 WL 455512 (9th Cir. Feb. 25, 2009) (per curiam) (Arizona conviction for aggravated assault under Arizona Revised Statutes 13-1204(A)(11) ("[i]ntentionally, knowingly or recklessly causing any physical injury to another person") was not a conviction for a "crime of violence" under USSG 2L1.2(b)(1)(A)(ii), as an "offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another," under U.S.S.G. 2L1.2 n. 1(b)(iii), because "Under the categorical approach, aggravated assault requires a mens rea of at least recklessness "under circumstances manifesting extreme indifference to the value of human life." Esparza-Herrera's statute of conviction, A.R.S. 13-1204(A)(11), encompassed ordinary recklessness, and therefore his conviction was not a conviction for generic aggravated assault or a crime of violence.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - NEGLIGENT VEHICULAR MANSLAUGHTER DOES NOT CONSTITUTE "MANSLAUGHTER" WITHIN GUIDELINES
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) (California conviction for vehicular manslaughter while intoxicated without gross negligence, in violation of Penal Code 192(c)(3) (1998), was not "crime of violence" for purposes of sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A) for illegal reentry following conviction for qualifying felony, because the elements require only proof of ordinary negligence, so cannot fall within the contemporary meaning of manslaughter as enumerated in U.S.S.G. 2L1.2 cmt. 1(B)(iii)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - AIDING AND ABETTING ASSAULT WITH A DEADLY WEAPON
Ortiz-Magana v. Mukasey, 542 F.3d 653 (9th Cir. Sept. 09, 2008) (California conviction of aiding and abetting assault with a deadly weapon, under Penal Code 245(a)(1), constitutes a crime of violence aggravated felony for removal purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Becerril-Lopez, 528 F.3d 1133 (9th Cir. Jun.12, 2008) (California conviction of robbery, in violation of Penal Code 211, constituted crime of violence, for purposes of 16-level enhancement of illegal reentry sentence under USSG 2L1.2(b), which contains no reference to 18 U.S.C. 16(b)), distinguishing United States v. McDougherty, 920 F.2d 569, 574 (9th Cir. 1990) (holding California robbery, under Penal Code 211, constituted a crime of violence under USSG 4B1.2 commentary language as well as 18 U.S.C. 16(b), covering any felony that involved a "substantial risk" that physical force may be used "against the person or property of another", a definition broader than the definition contained in 4B1.2 alone, which identified only those crimes presenting a substantial risk of physical injury to another person (not to property).).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ESCAPE
Penuliar v. Ashcroft, 528 F.3d 603 (9th Cir. Jun. 10, 2008) (California conviction for evading an officer, in violation of California Vehicle Code 2800.2(a) is not categorically an aggravated felony crime of violence for immigration purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - FIREARMS POSSESSION
United States v. Crampton, 519 F.3d 893 (9th Cir. Mar. 10, 2008) (Oregon conviction for possession of a short-barreled shotgun, in violation of ORS 166.272(a), is a crime of violence for purposes of the Armed Career Criminal Act, because of the substantial risk of force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. Jan. 22, 2008) (Washington conviction for fourth degree assault, in violation of RCW 9A.36.041 is not categorically an aggravated felony crime of violence, since it may be committed by any offensive touching).

AGGRAVATED FELONY - CRIME OF VIOLENCE - INTERFERENCE WITH LAW ENFORCEMENT
Estrada-Rodriguez v. Mukasey, __ F.3d __, 2007 WL 4554053 (9th Cir. Dec. 28, 2007) (Arizona conviction for resisting arrest, in violation of Arizona Revised Statutes 13-2508 categorically constitutes an aggravated felony crime of violence for immigration purposes, since the first subsection of that statute requires the element of use of force, and the second subsection requires a substantial risk that force will be used in the commission of the offense, mirroring 18 U.S.C. 16(a) and (b) respectively).

NOTE: The Court here looked to Arizona state law to determine that neither nonviolent refusal to submit, nor flight from an officer were offenses included under the Arizona statute.

AGGRAVATED FELONY - CRIME OF VIOLENCE - POSSESSION OF SAWED OFF SHOTGUN
United States v. Crampton, 510 F.3d 1108 (9th Cir. Dec. 20, 2007) (Oregon conviction for possession of a sawed off shotgun, in violation of Or. Rev. Stat. 166.272(1), is a crime of violence for purposes of the Armed Career Criminal Act).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ARSON
Jordison v. Gonzales, 501 F.3d 1134 (9th Cir. Sept. 4, 2007) (California conviction of arson, in violation of Penal Code 452(c) ("recklessly set[ting] fire to . . . a structure or forest land"), was not a "crime of violence" under 18 U.S.C. section 16(b) for purposes of triggering deportation as an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since offense may be committed by setting fire to ones own property).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ARSON - SAFE HAVEN - CRIME OF VIOLENCE - OFFENSE MUST BE AGAINST PERSON OR PROPERTY OF ANOTHER
Jordison v. Keisler, 501 F.3d 1134 (9th Cir. Sept. 4, 2007, amended Oct. 30, 2007) (California conviction for "recklessly set[ting] fire to ... a structure or forest land" in violation of Penal Code 452(c) is not categorically an aggravated felony "crime of violence" for purposes of removal since the offense may be committed by burning the defendant's own land or structure whereas a crime of violence is one that involves violence or potential violence against the person or property of others).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH INTENT TO COMMIT RAPE
United States v. Bolanos-Hernandez, 492 F.3d 1140 (9th Cir. Aug. 6, 2007) (California conviction of assault with intent to commit rape, in violation of Penal Code 220, 261(a)(2), is crime of violence under the federal sentencing guidelines).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ESCAPE
United States v. Savage, 488 F.3d 1232, (9th Cir. Jun. 12, 2007) (Montana conviction of escape, in violation of Montana Code Annotated 45-7-306(2) (escape includes purposeful "fail[ure] to return to official detention following temporary leave granted for a specific purpose or limited time" as well as "knowingly or purposely elud[ing] official detention."), does not categorically constitute a crime of violence because it does "not differentiate between violent and non-violent escapes" and includes escapes from facilities that "run [ ] the gamut from maximum-security facilities to non-secure halfway houses."), quoting United States v. Piccolo, 441 F.3d 1084, 1088 (9th Cir. 2006).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE
United States v. Beltran-Munguia, 489 F.3d 1042 (9th Cir. Jun. 7, 2007) (Oregon conviction of sexual abuse in the second degree, in violation of Oregon Revised Statute 163.425, did not qualify as a "crime of violence," for purposes of 16-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), of his sentence for illegal reentry after deportation both because the state statute does not make force - be it used, attempted, or threatened - an element of the crime, and because the crime does not constitute a "forcible sex offense" within the meaning of the applicable guideline).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SHOOTING AT INHABITED DWELLING
United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. Jun. 6, 2007) (California conviction of under Penal Code 246 (maliciously and willfully discharge firearm at inhabited building or vehicle) did not categorically constitute a crime of violence under U.S.S.G. 2L1.2, application note 1(B)(iii) ("crime of violence" is a "federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another."), since the elements of this offense allow conviction for reckless or grossly negligent conduct, rather than requiring intentional use of force), holding that Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc) (limiting categorical crimes of violence to offenses committed through intentional use of force against the person of another rather than reckless or grossly negligent conduct), abrogates United States v. Lopez-Torres, 443 F.3d 1182 (9th Cir. April 25, 2006).

AGGRAVATED FELONY - CRIME OF VIOLENCE - INTENT REQUIREMENT - GENERAL INTENT - INCLUDES RECKLESSNESS WHICH IS INSUFFICIENT TO CONSTITUTE A CRIME OF VIOLENCE
United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. Jun. 6, 2007) (California general intent offenses, such as willfully and maliciously discharging a firearm at an inhabited dwelling, under Penal Code 246, permit conviction for conduct showing a conscious indifference to the probable consequence that one or more projectiles will strike the target; the "conscious indifference" intent element is equivalent to recklessness.), citing Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc) (limiting categorical crimes of violence to offenses committed through intentional use of force against the person of another rather than reckless or grossly negligent conduct)

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Carson, 486 F.3d 618 (9th Cir. May 15, 2007) (Washington conviction of second-degree assault, in violation of RCW 9A.36.021(1)(f) [ "[k]nowing[ ] inflict[ion of] bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture."] is a "crime of violence" for purposes of the Sentencing Guidelines career offender enhancement provision, U.S.S.G. 4B1.1).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT IN THIRD DEGREE
United States v. Rendon-Duarte, 482 F.3d 1080, 1085 (9th Cir. March 21, 2007) (Alaska conviction of Assault in the Third Degree, in violation of Alaska Statute 11.41.220(a)(1) ("recklessly (A) places another person in fear of imminent serious physical injury by means of a dangerous instrument."), constituted a crime of violence under U.S.S.G. 4B1.2(a)(2)(2005) ("any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . (2) ... involves conduct that presents a serious potential risk of physical injury to another."), for purposes of enhancing sentence for a federal conviction for being a felon in possession of firearms, in violation of in violation of 18 U.S.C. 922(g)(1) & 924(a)(2): "Whether the conduct was reckless or not has no bearing on the applicability of subsection (2) of the Guidelines.").

AGGRAVATED FELONY - STALKING - CRIME OF VIOLENCE
Malta-Espinoza v. Gonzales, __ F.3d __ , 2007 WL 624532 (9th Cir. Mar. 2, 2007) (California stalking conviction, in violation of Penal Code 649.9, is not an aggravated felony crime of violence for immigration purposes, since even the more serious portion of the statute does not necessarily create a risk that force may be used; the California stalking statue requires an intent to create fear, but not require intent to carry out the threat - the statute may be violated even if the defendant was incarcerated or thousands of miles away and completely unable to carry out the threat.) http://caselaw.lp.findlaw.com/data2/circs/9th/0471140p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(a) - STALKING NOT COV SINCE NO ELEMENT OF FORCE SINCE THREAT TO SAFETY WAS NOT LIMITED TO PHYSICAL SAFETY
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(a), because the threat to safety is not limited to physical safety, and the offense therefore did not have the required element of the use of force), following United States v. Jones, 231 F.3d 508 (9th Cir. 2000).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(b) - STALKING NOT AGGRAVATED FELONY SINCE IT MIGHT HAVE BEEN COMMITTED BY HARASSMENT FROM A DISTANCE, WHICH DOES NOT PRESENT A SUBSTANTIAL RISK THAT VIOLENT FORCE WILL INTENTIONALLY BE USED IN THE COMMISSION OF THE OFFENSE
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(b), because the offense might have been committed by harassment from a distance, which does not present a substantial risk that violent force will be used in the commission of the offense).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(b) - STALKING NOT AGGRAVATED FELONY SINCE IT PRESENTED A RISK THAT FORCE WILL RECKLESSLY BE USED IN THE COMMISSION OF THE OFFENSE, AND RECKLESS USE OF FORCE IS INSUFFICIENT TO QUALIFY AS CRIME OF VIOLENCE
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(b), because it presented a substantial risk that that violent force will recklessly be used in the commission of the offense, and reckless use of force does not qualify as a crime of violence).

AGGRAVATED FELONY - CRIME OF VIOLENCE - FALSE IMPRISONMENT
United States v. Gonzalez-Perez, 472 F.3d 1158 (9th Cir. Jan. 10, 2007) (Florida conviction of false imprisonment under Florida law, did not constitute a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), to warrant imposition of a 16-level sentence enhancement for illegal re-entry following deportation, because offense may be committed "secretly" without use of force). http://caselaw.lp.findlaw.com/data2/circs/9th/0510693p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - ABUSE OF FAMILY OR HOUSEHOLD MEMBER
United States v. Nobriga, ___ F.3d ___ , 2006 WL 3821413 (9th Cir. Dec. 29, 2006) (Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes 709-906(1), did not categorically involve the "violent use of force," as required under Armed Career Criminal Act, 18 U.S.C. 921(a)(33)(A)(ii), since the offense of conviction does not necessarily require a "violent use of force").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ABUSE OF FAMILY OR HOUSEHOLD MEMBER
United States v. Nobriga, ___ F.3d ___, 2006 WL 3821413 (9th Cir. Dec. 29, 2006) (Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes 709-906(1), did not involve the "violent use of force," as required under Armed Career Criminal Act, 18 U.S.C. 921(a)(33)(A)(ii), under a modified categorical analysis, since nothing in the record of conviction establishes that the defendant acted with a mental state greater than recklessness).

AGGRAVATED FELONY - BURGLARY - CRIME OF VIOLENCE
United States v. Reina-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 15, 2006) (Utah conviction of second-degree attempted aggravated burglary, under Utah Code Ann. 76-6-203, does not necessarily constitute a "crime of violence" illegal reentry sentencing purposes since Utah conviction of attempted aggravated burglary does not require an entry into a dwelling). http://caselaw.lp.findlaw.com/data2/circs/9th/0510475p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - POSSESSION OF DANGEROUS WEAPON
United States v. Reina-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 15, 2006) (Utah conviction of second-degree attempted aggravated burglary, under Utah Code Ann. 76-6-203, does not necessarily constitute a "crime of violence" illegal reentry sentencing purposes, because Utah conviction of attempted aggravated burglary may be committed by merely possessing a dangerous weapon while committing or attempting to commit a burglary, and such possession does not involve the use or threat of force), following United States v. Serna, 435 F.3d 1046, 1047 (9th Cir. 2006) (interpreting different "career criminal" guideline, USSG 4B1.2 [defining "crime of violence" differently, to include "conduct that presents a serious risk of physical injury to another . . . ." which is not in USSG 2L1.2(b)(1)(A)(ii)). http://caselaw.lp.findlaw.com/data2/circs/9th/0510475p.pdf

AGGRAVATED FELONY - BURGLARY - CRIME OF VIOLENCE
United States v. Reina-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 15, 2006) (Utah conviction of second-degree attempted aggravated burglary, under Utah Code Ann. 76-6-203, a crime of violence for illegal reentry sentencing purposes where the charging document and judgment of conviction, show the conviction was for burglary of a dwelling). http://caselaw.lp.findlaw.com/data2/circs/9th/0510475p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - CATEGORICAL ANALYSIS -- DISCHARGING FIREARM AT DWELLING NOT CATEGORICALLY A CRIME OF VIOLENCE
United States v. Martinez-Martinez, ___ F.3d ___ (9th Cir. Nov. 14, 2006) (Arizona conviction of discharging firearm at a residence, in violation of A.R.S. 13-1211, did not categorically constitute a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG 2L1.2(b)(1)(A)(ii), because the statute of conviction encompassed any structure capable of being occupied as a residence, even though it was not presently so occupied), distinguishing United States v. Cortez-Arizs, 403 F.3d 1111 (9th Cir. 2005) (California conviction of discharging a firearm at an "inhabited dwelling house," one "currently being used for dwelling purposes, whether occupied or not," in violation of Penal Code 246, constituted a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG 2L1.2(b)(1)(A)(ii)). http://caselaw.lp.findlaw.com/data2/circs/9th/0610015p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Fernandez-Ruiz v. Gonzales, ___ F.3d ___ (9th Cir. Oct. 26, 2006) (Arizona conviction of domestic violence assault, in violation of Ariz. Rev. Stats. 13-1203(A)(1) ["[i]ntentionally, knowingly, or recklessly causing any physical injury to another"], did not constitute a crime of violence under 18 U.S.C. 16(a), and is therefore not a domestic violence conviction, within the meaning of INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), for immigration purposes, because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another).

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS BUT UNINTENTIONAL MENS REA INSUFFICIENT TO CONSTITUTE CRIME OF VIOLENCE - ARIZONA ASSAULT
Fernandez-Ruiz v. Gonzales, ___ F.3d ___ (9th Cir. October 26, 2006)(en banc) (Arizona conviction of domestic violence assault, in violation of Ariz. Rev. Stats. 13-1203(A)(1), 13-601 ["[i]ntentionally, knowingly, or recklessly causing any physical injury to another"], did not constitute a crime of violence under 18 U.S.C. 16(a), and is therefore not a domestic violence conviction, within the meaning of INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), for immigration purposes, because the relevant Arizona statute permits conviction when a defendant recklessly [i.e., with awareness and conscious disregard of a risk], but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another), following Lara-Cazares v. Gonzales, 308 F.3d 1217 (9th Cir. 2005) (gross negligence insufficient to constitute crime of violence), and overruling United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000); Park v. INS, 252 F.3d 1018, 1024-1025 (9th Cir. 2001).

CRIME OF VIOLENCE - SHOOTING AT AN OCCUPIED MOTOR VEHICLE
United States v. Lopez-Torres, ___ F.3d ___ (9th Cir. Apr. 25, 2006) (California conviction for shooting at an occupied motor vehicle under Penal Code § 246 is categorically a crime of violence for purposes of enhancement of illegal reentry sentence under USSG § 2L1.2).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ESCAPE FROM HALFWAY HOUSE NOT CRIME OF VIOLENCE FOR FEDERAL ARMED CAREER OFFENDER ENHANCEMENT PURPOSES

United States v. Piccolo, 441 F.3d 1084 (9th Cir. Apr. 3, 2006) (Escape conviction under 18 U.S.C. § 751(a), which includes failure to return to a non-secured halfway house, is not necessarily a crime of violence for federal armed career offender sentencing purposes).

CRIME OF VIOLENCE - UNLAWFUL SEX WITH A MINOR
Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. Mar. 6, 2006) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code § 261.5(c) is not categorically a crime of violence under 18 U.S.C. § 16 for deportation purposes, since it does not have force as an element, under 18 U.S.C. § 16(a), and the full range of conduct encompassed by this offense does not present a substantial risk that violent force will be used in the commission of the offense under 18 U.S.C. § 16(b); mere inability to give legal consent if under 18 does not create a substantial risk that violent force will be used to commit the offense where actual consent is present; decision did not consider whether this conviction constituted a sexual abuse of a minor aggravated felony because the noncitizen was not ordered removed on that ground), second opinion, 431 F.3d 673, superseded and withdrawn.

CRIME OF VIOLENCE - POSSESSION OF ASSAULT WEAPON
United States v. Serna, 435 F.3d 1046 (9th Cir. Jan. 23, 2006) (California conviction for possession of assault weapon in violation of California Penal Code § 12280(b) was not "crime of violence" under the federal Sentencing Guidelines for purposes of illegal re-entry sentence enhancement).

CRIME OF VIOLENCE - BURGLARY OF DWELLING
United States v. Guerrero-Velasquez, 434 F.3d 1193 (9th Cir. Jan. 19, 2006) (Washington conviction of second-degree burglary, under Wash. Rev. Code § 9A.52.030(1) ("A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling."), held to constitute crime of violence for purposes of imposing a 16-level increase in base offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for illegal re-entry sentence, where signed plea agreement admitted fact charged in information that defendant illegally entered a residence).

CRIME OF VIOLENCE - LEWD ACT WITH CHILD
United States v. Teeples, 432 F.3d 1110 (9th Cir. Jan. 5, 2006) (California conviction for violation of California Penal Code § 288(a), lewd act with child, was a crime of violence for purposes of career offender sentencing).

CRIME OF VIOLENCE - HARASSING TELEPHONE CALL
United States v. Ladwig, 432 F.3d 1001 (9th Cir. Dec. 27, 2005) (Washington felony conviction for making harassing telephone call under R.C.W. § 9.61.230(3)(b), is a "violent felony" predicate offense under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because it has a threat of use of physical force against the person of another, and is a felony only if committed by a threat to kill, which is a conduct-based sentence enhancement that can be considered part of the record of conviction in making this determination).

CRIME OF VIOLENCE - FALSE IMPRISONMENT
United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. Dec. 16, 2005) (California conviction of felony false imprisonment, in violation of Penal Code § 236, 237 constitutes a divisible statute, encompassing some offenses that constitute crimes of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii), and some that do not; if defendant was or might have been convicted of committing false imprisonment by fraud or deceit, the conviction would not fall within the crime of violence portion of the divisible statute, for purposes of assessing a 16-level increase in base offense level for illegal re-entry).

CRIME OF VIOLENCE - UNLAWFUL SEX WITH A MINOR
Valencia v. Gonzales, 431 F.3d 673 (9th Cir. Dec. 12, 2005) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code § 261.5(c) is not, absent aggravating factors, a crime of violence under 18 U.S.C. § 16 for deportation purposes, since it does not have force as an element, under 18 U.S.C. § 16(a), and the full range of conduct encompassed by this offense does not present a substantial risk that violent force will be used in the commission of the offense under 18 U.S.C. § 16(b); mere inability to give legal consent if under 18 does not create a substantial risk that violent force will be used to commit the offense where actual consent is present; decision did not consider whether this conviction constituted a sexual abuse of a minor aggravated felony because the noncitizen was not ordered removed on that ground), withdrawn and superceded by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).

CRIME OF VIOLENCE - POSSESSION OF SHORT-BARRELED SHOTGUN
United States v. Delaney, 427 F.3d 1224 (9th Cir. Nov. 7, 2005) (California conviction of possession of a short-barreled shotgun, in violation of California Penal Code § 12020(a)(1), is a crime of violence for sentencing purposes, since short-barreled shotguns are "inherently dangerous," their only use is violence, and thus their possession involves a substantial risk of the use of physical force).

CRIME OF VIOLENCE - ATTEMPTING TO ELUDE POLICE VEHICLE
United States v. Kelly, 422 F.3d 889 (9th Cir. Sept. 6, 2005) (Washington conviction for attempting to elude a police vehicle, in violation of R.C.W. § 46.61.024, is not a "crime of violence" for sentencing purposes).

CRIME OF VIOLENCE - SEXUAL BATTERY
United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (California conviction of sexual battery under California Penal Code § 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a "forcible" sex offense under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)); but see Lisbey v. Gonzales, 420 F.3d 930 (9th Cir. Aug. 22, 2005) (sexual battery under California Penal Code § 243.4 constitutes an aggravated felony for removal purposes, as the offense involves a substantial risk of physical force under 18 U.S.C. § 16(b)).

CRIME OF VIOLENCE - SEXUAL BATTERY
Lisbey v. Gonzales, 420 F.3d 930 (9th Cir. Aug. 22, 2005) (California conviction of sexual battery under California Penal Code § 243.4 constitutes an aggravated felony for removal purposes, as the offense involves a substantial risk of physical force under 18 U.S.C. § 16(b)); but see United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (sexual battery under California Penal Code § 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a "forcible" sex offense under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)).

CRIME OF VIOLENCE - DOMESTIC VIOLENCE
Fernandez-Ruiz v. Gonzales, 410 F.3d 585 (9th Cir. June 1, 2005) (Arizona misdemeanor conviction of domestic violence assault, in violation of Ariz. Rev. Stat. § 13-1203(A)(1) or (2), which both require the use, attempted use, or threatened use of physical force against the person or property of another, therefore both qualify as crimes of violence under 18 U.S.C. § 16(a); the offenses were designated as a crimes of domestic violence under state law pursuant to Ariz. Rev. Stat. § 12-3601 - even though the state label is usually considered irrelevant because the state conviction must qualify under the federal definition of a ground of deportation), vacated on grant of rehearing en banc, 431 F.3d 1212 (9th Cir. Dec. 13, 2005).

CRIME OF VIOLENCE - VEHICULAR MANSLAUGHTER
Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. May 23, 2005) (California conviction of gross vehicular manslaughter while intoxicated, in violation of Penal Code § 191.5(a), which can be committed by gross negligence, does not qualify as a crime of violence within the meaning of 18 U.S.C. § 16, and so does not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes, even if a sentence of one year or more has been imposed, holding that gross negligence is not the same as recklessness), disapproving Park v. INS, 252 F.3d 1018 (9th Cir. June 5, 2001), and cases therein cited as no longer good law in light of Leocal v Ashcroft, 125 S.Ct. 377 (Nov. 9, 2004).

CRIME OF VIOLENCE - DOMESTIC VIOLENCE
United States v. Nobriga, 408 F.3d 1178 (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. § 709-906(A), did not invariably constitute a crime of domestic violence, under 18 U.S.C. § 921(a)(33)(A)(ii), because it did not necessarily require the use of violent force against the body of another individual, since it also prohibited refusal to comply with the lawful order of a police officer, but the "physically abuse" prong "requires, at a minimum, a reckless use of physical force").

CRIME OF VIOLENCE - STATUTORY RAPE
Valencia v. Gonzales, 406 F.3d 1154 (9th Cir. May 12, 2005) (California conviction of unlawful sexual intercourse with a person under 18, in violation of Penal Code § 261.5(c), with a five-year suspended sentence, did not have as an element the use, attempt, or threat of force, and so did not constitute a crime of violence aggravated felony under 18 U.S.C. § 16(a), within the meaning of INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), or trigger removal under INA § 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)), withdrawn and superceded by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).

CRIME OF VIOLENCE - STATUTORY RAPE
Valencia v. Gonzales, 406 F.3d 1154 (9th Cir. May 12, 2005) (California conviction of unlawful sexual intercourse with a person under 18 (here 17), in violation of Penal Code § 261.5(c), with a five-year suspended sentence, constituted a crime of violence aggravated felony under 18 U.S.C. § 16(b), within the meaning of INA 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), and therefore triggered removal under INA § 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), following United States v. Granbois, 376 F.3d 993 (9th Cir. July 22, 2004), even though in Granbois, the victim was 15, and in Granbois, the court considered whether the offense "presented a serious potential risk of physical injury to another" under U.S.S.G. § 4B1.2(a), whereas here the question is whether the offense presents "a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," under 18 U.S.C. § 16(b)), withdrawn and superceded by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).

CRIME OF VIOLENCE - SHOOTING AT INHABITED BUILDING
United States v. Cortez-Arias, 415 F.3d 977 (9th Cir. Apr. 18, 2005) (California conviction of shooting at inhabited dwelling, in violation of Penal Code § 246, was a conviction for a "crime of violence" for sentencing purposes following prosecution for illegal re-entry).

CRIME OF VIOLENCE - EVADING AN OFFICER
Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005) (California conviction of evading an officer, in violation of Vehicle Code § 2800.2(a), was not a crime of violence, within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), because the statute and charge were both overbroad with respect to the aggravated felony definition of a crime of violence by encompassing merely negligent conduct).

CRIME OF VIOLENCE - CHILD ABUSE
United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004) (Nevada conviction of child abuse under Nev. Rev. Statutes § 200.508 does not qualify as a crime of violence for purposes of enhancement of sentence for unlawful re-entry after deportation, since statute may be violated by negligence alone, and record of conviction was unclear as to level of intent).

CRIME OF VIOLENCE - HARASSMENT
Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. Oct. 21, 2004) (Oregon conviction under Or. Rev. Stat. § 166.065(1)(a)(A), punishing intentionally harassing or annoying another person by subjecting that person to offensive physical contact, is not a crime of violence, and therefore not a crime of domestic violence for immigration purposes, since the force required to commit the offense, including spitting, is not necessarily "violent" force).

CRIME OF VIOLENCE - ASSAULT
United States v. Sandoval, 390 F.3d 1077 (9th Cir. Aug. 19, 2004) (Washington Assault in the Third Degree is not a crime of violence for sentencing purposes since the statute may be violated through an unlawful touching that does not involve substantial physical force or seriously risk physical injury).

CRIME OF VIOLENCE - ABUSIVE SEXUAL CONTACT
United States v. Granbois, 376 F.3d 993 (9th Cir. July 22, 2004) (federal conviction under 18 U.S.C. § 2244(a)(3), sexual contact with a child, is a "crime of violence" for purposes of the Career Offender Guideline, U.S.S.G. § 4B1.1); see United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. Aug. 4, 2003) (crimes involving sexual abuse of a minor are per se "crimes of violence" for sentencing purposes following conviction for illegal re-entry).

CRIME OF VIOLENCE - BURGLARY
United States v. Matthews, 374 F.3d 872 (9th Cir. July 7, 2004) (conviction of burglary of an occupied building did not constitute a crime of violence under U.S.S.G. § 4B1.2(a)(2), where the parties agreed the term "occupied" did not require a persons actual physical presence).

CRIME OF VIOLENCE - CORPORAL INJURY ON SPOUSE
United States v. Hernandez-Hernandez, 374 F.3d 808 (9th Cir. June 30, 2004) (California misdemeanor conviction of corporal injury on spouse, in violation of Penal Code § 273.5(a), cannot constitute a crime of violence aggravated felony conviction, so as to support a 16-level enhancement of sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii), because it was a misdemeanor with a maximum possible sentence of one year in county jail).

CRIME OF VIOLENCE - FALSE IMPRISONMENT
United States v. Hernandez-Hernandez, 374 F.3d 808 (9th Cir. June 30, 2004) (California felony conviction of false imprisonment, in violation of Penal Code § 236, 237, is a divisible statute, as it may be committed by violence, menace, fraud or deceit; the record of conviction, which included by stipulation the statement of facts contained in a motion filed in the criminal case, established that the conviction occurred under the violence portion of the statute; conviction therefore constituted a crime of violence aggravated felony conviction, supporting a 16-level enhancement of sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii)).

CRIME OF VIOLENCE - POSSESSION OF DESTRUCTIVE DEVICE
United States v. Fish, 368 F.3d 1200 (9th Cir. May 28, 2004) (Oregon conviction of possession of a destructive device, under Or. Rev. Stat. § 166.382, did not constitute "a crime of violence" under the U.S.S.G. to allow an increased offense level in determining sentencing).

CRIME OF VIOLENCE - FIREARMS
United States v. Sarbia, 367 F.3d 1079 (9th Cir. May 14, 2004) (Nevada conviction of attempt to discharge a firearm at an occupied structure constitutes a crime of violence under U.S.S.G. § 4B1.2).

CRIME OF VIOLENCE - BURGLARY
United States v. Rodriguez-Rodriguez, 364 F.3d 1142 (9th Cir. Apr. 20, 2004) (California conviction for burglary of an inhabited building, under California Penal Code § 460, is an aggravated felony and a "crime of violence" for sentencing purposes).

CRIME OF VIOLENCE - FIREARM USE - EVADING AN OFFICER
Reyes-Alcaraz v. Ashcroft, 363 F.3d 937 (9th Cir. Apr. 8, 2004) (California conviction of exhibiting a deadly weapon with intent to resist arrest, in violation of California Penal Code § 417.8, is a crime of violence and thus an "aggravated felony" under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for immigration purposes).

CRIME OF VIOLENCE - ASSAULT WITH INJURY - MAYHEM
Ruiz-Morales v. Ashcroft, 361 F.3d 1219 (9th Cir. Mar. 24, 2004) (California conviction of mayhem, under California Penal Code § 203, punishing unlawful and malicious disfigurement or dismemberment, is an aggravated felony crime of violence for immigration purposes).

CRIME OF VIOLENCE - FLIGHT FROM OFFICER
United States v. Campos-Fuerte, 357 F.3d 956 (9th Cir. Feb. 4, 2004) (California conviction of fleeing from an officer by driving a vehicle in a willful or wanton manner, in violation of California Vehicle Code § 2800.2, constitutes a crime of violence under 18 U.S.C. § 16(b), and is therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of enhancing an illegal re-entry sentence).

CRIME OF VIOLENCE - RESIDENTIAL BURGLARY
United States v. Wenner, 351 F.3d 969 (9th Cir. Dec. 12, 2003) (Washington conviction of residential burglary, in violation of Wash. Rev. Code § 9A.52.025(1), is not a "burglary of a dwelling" crime of violence as defined by U.S.S.G. § 4B1.2(a)(2), since the statute classifies railway cars, fenced areas, and cargo containers as dwellings although they are not structures under Taylor v. United States, 495 U.S. 575 (1990); Taylor applies to sentencing as well as immigration context).

CRIME OF VIOLENCE - LEWD ACT WITH CHILD
United States v. Medina-Maella, 351 F.3d 944 (9th Cir. Dec. 10, 2003) (California conviction for lewd or lascivious acts upon a child under the age of 14 years, under California Penal Code § 288, constitutes a "crime of violence" for purposes of unlawful re-entry under U.S.S.G. § 2L1.2, even though the offense does not have force as an element; recent amendments to U.S.S.G. § 2L1.2 irrelevant).

CRIME OF VIOLENCE - BATTERY
Flores v. Ashcroft, 350 F.3d 666, 672 (9th Cir. Nov. 26, 2003) (Indiana conviction of battery, under Indiana Code § 35-42-2-1, is not categorically a crime of violence for purposes of INA § 237(a)(2)(E)(i) (domestic violence), because the offense can be committed by a mere offensive touching).

CRIME OF VIOLENCE - VEHICULAR ASSAULT
United States v. Grajeda-Ramirez, 348 F.3d 1123 (9th Cir. Nov. 12, 2003) (Colorado conviction of reckless vehicular assault, in violation of Colo.Rev.Stat. § 18-3-205(1)(a), is a "crime of violence" for the purposes of the U.S.S.G.).

CRIME OF VIOLENCE - CRIMINAL THREATS
Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9th Cir. Oct. 17, 2003) (California conviction of terrorist or criminal threats, in violation of Penal Code § 422, constitutes an "aggravated felony" as a crime of violence under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), rendering noncitizen subject to deportation).

CRIME OF VIOLENCE - BATTERY
United States v. Belless, 338 F.3d 1063 (9th Cir. Aug. 11, 2003) (Wyoming battery conviction: domestic relationship not a required element in order for Wyoming battery conviction to serve as a predicate offense under the 18 U.S.C. § 921(a)(33)(A) firearm statutes definition of a crime of domestic violence; however, as the battery statute encompasses less violent behavior than the requisite use or attempted use of physical force, the statute does not qualify as a predicate offense for that purpose).

CRIME OF VIOLENCE - ASSAULT IN VIOLATION OF COURT ORDER
United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. Aug. 11, 2003) (Washington conviction of third degree assault in violation of court order, under Rev. Code of Washington § 26.50.110(4), may fail to trigger a 16-level illegal re-entry sentence enhancement, as a crime of violence under U.S.S.G. § 2L1.2 (2001), because the statute proscribes merely negligent assault).

CRIME OF VIOLENCE - CARNAL KNOWLEDGE OF CHILD 13-15 YEARS OLD
United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. Aug. 4, 2003) (Virginia conviction of carnal knowledge of a child between 13 and 15 years of age, in violation of Virginia Code § 18.2-63, constituted a "crime of violence" under U.S.S.G. § 2L1.2 (2002); although the offense does not have as an element the use, attempted use, or threatened use of physical force, the offense falls within the second part of the "crime of violence" definition under U.S.S.G. § 2L1.2, cmt n.1(B)(II), which includes sexual abuse of a minor).

CRIME OF VIOLENCE - VOLUNTARY MANSLAUGHTER
United States v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. June 9, 2003) (California conviction of voluntary manslaughter, in violation of Penal Code § 192(a), held to be a "crime of violence" aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A), even though the elements of the offense do not require intentional use of force, because it is listed in the Guideline).

CRIME OF VIOLENCE - BATTERY CAUSING SERIOUS BODILY INJURY
United States v. Gonzalez-Tamariz, 310 F.3d 1168 (9th Cir. Nov. 18, 2002) (Nevada conviction of battery causing substantial bodily harm, in violation of Nev.Rev.St. § 200.481, constituted aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as a crime of violence with one-year sentence imposed, regardless of its state law label as a misdemeanor with one-year maximum possible sentence, for purposes of enhancing federal sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)); accord, United States v. Pacheco, 225 F.3d 148, 149 (2d Cir. Aug. 29, 2000); United States v. Marin-Navarette, 244 F.3d 1284, 1286-87 (11th Cir. Mar. 23, 2001); United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. Apr. 26, 2002), quoting United States v. Graham, 169 F.3d 787, 792 (3d Cir. Mar. 5, 1999); United States v. Urias-Escobar, 281 F.3d 165, 168 (5th Cir. Jan. 23, 2002), cert. denied, 122 S.Ct. 2377 (2002).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
Cuevas-Diaz v. Ashcroft, 37 Fed.Appx. 935 (9th Cir. June 19, 2002) (California felony conviction for violating Vehicle Code § 23152(a), driving under the influence, with prior convictions, does not constitute an aggravated felony within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).

CRIME OF VIOLENCE - BURGLARY
United States v. Sandoval-Venegas, 292 F.3d 1101 (9th Cir. June 14, 2002) (California conviction of violating Penal Code § 459 (burglary) not a crime of violence for purposes of federal career criminal enhancement of bank robbery sentence under U.S.S.G. § 4B1.1, 4B1.2(a), where record of conviction did not establish that burglary was of a dwelling).

CRIME OF VIOLENCE - FELONY ENDANGERMENT
United States v. Hernandez-Castellanos, 287 F.3d 876 (9th Cir. Apr. 25, 2002) (Arizona conviction of felony endangerment in violation of A.R.S. § 13-1201 was not categorically an aggravated felony under a crime of violence theory under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for illegal re-entry enhancement purposes under U.S.S.G. § 2L1.2(b)(1)(A), because a "substantial risk of imminent death or physical injury" as contained in the state statute is not the same as a "substantial risk that physical force . . . may be used," which is necessary to constitute a "crime of violence" under 18 U.S.C. § 16(b)).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. Jan. 16, 2002) (California conviction of driving under the influence of alcohol in violation of California Vehicle Code § 23152(a), a felony under Vehicle Code § 23175 as a result of four prior DUI convictions, was not a crime of violence or an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for immigration purposes).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
United States v. Portillo-Mendoza, 273 F.3d 1224, 1226 (9th Cir. Dec. 17, 2001) (California DUI conviction with priors in violation of California Vehicle Code § 23152 and 23550 was not an aggravated felony for purposes of enhancing a sentence for illegal re-entry).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. Aug. 8, 2001) (California conviction for driving under influence of alcohol with injury to another, a violation of California Vehicle Code § 23153, was not "crime of violence," and thus was not "aggravated felony" under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) and did not warrant 16-level increase of illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A)).

CRIME OF VIOLENCE - CORPORAL INJURY ON SPOUSE
United States v. Jimenez, 258 F.3d 1120 (9th Cir. July 31, 2001) (California conviction for inflicting corporal injury on spouse was "aggravated felony," on which district court could rely to enhance sentence for illegal re-entry offense, though defendant was originally sentenced to probation with only a 365-day jail condition, and was not sentenced to two-year term of imprisonment until after he violated his probation), cert. denied, 122 S.Ct. 1115 (2002).

CRIME OF VIOLENCE - ASSAULT WITH DEADLY WEAPON
Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. June 28, 2001) (California conviction in 1995 of violating California Penal Code § 245(a)(1) by committing an assault with a deadly weapon, with a sentence to one year in prison, constituted a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes).

CRIME OF VIOLENCE - INVOLUNTARY MANSLAUGHTER
Park v. INS, 252 F.3d 1018 (9th Cir. June 5, 2001) (California conviction for violation of California Penal Code § 192(b), involuntary manslaughter, constitutes an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).

CRIME OF VIOLENCE - STALKING
United States v. Jones, 231 F.3d 508, 519-520 (9th Cir. Sept. 15, 2000) (California conviction of stalking, under Penal Code § 646.9(a) - "any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty" of stalking - did not constitute a crime of violence because on its face the statute was not limited to physical injury).

CRIME OF VIOLENCE - ATTEMPTED ASSAULT WITH DEADLY WEAPON
United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. July 26, 2000) (Arizona conviction for attempted aggravated assault with a deadly weapon or deadly instrument, in violation of Ariz. Rev. Stat. § 13-1001 and 13-1204(A)(2) and (B), constitutes an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. David H., 29 F.3d 489, 494 (9th Cir. 1994) (California conviction of robbery, in violation of Penal Code 211, constitutes a crime of violence under 18 U.S.C. 5032, which dictates when juvenile offenders may be transferred to adult status, relying on "crime of violence" definition contained in 18 U.S.C. 16(b), although 5032 contained no definition of "crime of violence" of its own), citing United States v. Baker, 10 F.3d 1374, 1393-94 (9th Cir. 1993).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT
United States v. Sahagun-Gallegos, ___ F.3d ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (Arizona conviction of assault, under A.R.S. 13"1204(A), is overbroad with respect to 18 U.S.C. 16, because the definition of assault in subsection (1) of the Arizona statute includes simple recklessness, whereas a crime of violence requires a mens rea of at least heightened recklessness, see United States v. Gomez"Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012), and is divisible); see United States v. Cabrera"Perez, 751 F.3d 1000, 1004"05 (9th Cir. 2014).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT
United States v. Sahagun-Gallegos, ___ F.3d ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (Arizona conviction of assault, under A.R.S. 13"1203(A)(2) is categorically a crime of violence, under 18 U.S.C. 16, and INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it is an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another.); following United States v. Cabrera"Perez, 751 F.3d 1000, 1004"05 (9th Cir.2014).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ESCAPE FROM CUSTODY
United States v. Simmons, 782 F.3d 510 (9th Cir. Apr. 3, 2015) (Hawaii conviction of second-degree escape from custody, in violation of Hawaii Revised Statutes 710"1021, did not categorically constitute a crime of violence, under U.S. Sentencing Guidelines (Sentencing Guidelines or U.S.S.G.) 4B1.1(a), because it includes both active and passive forms of escape); see Chambers v. United States, 555 U.S. 122, 126"27, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).

AGGRAVATED FELONY - CRIME OF VIOLENCE - VEHICULAR HOMICIDE
United States v. Garcia-Espana, ___ F.Supp.2d ___, 2007 U.S. Dist. LEXIS 15696 (E.D. Wash. March 6, 2007) (defendant may not be convicted of illegal reentry after deportation, where INS erred in concluding that he was deportable because of his vehicular homicide conviction, which in turn, invalidated his deportation order, which violated his due process rights and therefore cannot serve as a predicate element of his 1326 conviction).

Tenth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " MENACING
Damaso-Mendoza v. Holder, 653 F.3d 1245 (10th Cir. Aug. 9, 2011) (Colorado conviction for menacing, under Colo.Rev.Stat. 18"3"206 [by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury], is categorically an aggravated felony crime of violence since it involves a threat of physical force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) (Arizona conviction of second degree burglary, in violation of Ariz.Rev.Stat. Ann. 13-1507(A), is a "crime of violence" for illegal re-entry sentencing purposes, since the "crime of violence" definition at U.S.S.G. 2L1.2(b)(1), includes "burglary of a dwelling," which may include mobile dwellings), distinguishing Taylor v. United States, 495 U.S. 575, 598 (1990).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Juarez-Galvan, 572 F.3d 1156 (10th Cir. Jul.20, 2009) (California conviction of robbery, in violation of Penal Code 211, constituted a crime of violence for illegal reentry sentencing purposes, because robbery is an offense enumerated under U.S.S.G. 2L1.2(b)(1)(A)(ii)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ASSAULT
United States v. Yanez-Rodriguez, 555 F.3d 931 (10th Cir. Feb. 10, 2009) (Kansas conviction for violation of Kan. Stat. Ann. 21-3517 (1988) ("unlawful, intentional touching of the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another") is a "forcible sex offense" for illegal re-entry sentencing purposes, even though the statute does not require that the actor used force), disagreeing with United States v. Meraz-Enriquez, 442 F.3d 331 (5th Cir.2006).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - PREGNANT WOMAN
United States v. Barraza-Ramos, 550 F.3d 1246 (10th Cir. Dec. 30, 2008) (Florida conviction for aggravated battery, under Fla. Stat. 784.045(1)(b) (intentionally touching a pregnant woman against her will, striking her against her will, or causing her bodily harm), is not categorically a crime of violence, under USSG 2L1.2(b)(1)(A)(ii) ("crime of violence" includes listed offenses plus "any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another."), supporting a 16-level enhancement of sentence for illegal reentry after deportation, because the intentional touching offense does not have sufficient violence as an element), following United States v. Hays, 526 F.3d 674, 679 (10th Cir. 2008) (Wyoming conviction of battery [unlawfully touching another in a rude, insolent, or angry manner] does not contain an element of the use or attempted use of physical force, and is therefore not categorically a crime of violence to support a conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence under 18 U.S.C. 922(g)(9) and 924(a)(2), since physical force in a crime of violence must entail more than mere contact).").

AGGRAVATED FELONY - CRIME OF VIOLENCE - CALIFORNIA ROBBERY DID NOT QUALIFY AS GENERIC ROBBERY UNDER GUIDELINES
United States v. Servin-Acosta, 534 F.3d 1362 (10th Cir. Jul. 30, 2008) (California conviction for robbery, in violation of Penal Code 211, is not categorically a generic "robbery" offense, and thus a crime of violence, under USSG 2L1.2(b), for illegal re-entry sentencing purposes; Penal Code 211 is broader than generic robbery in that it includes the use of force in escaping after the taking has occurred), agreeing with United States v. Becerril-Lopez, 528 F.3d 1133, 1140-42 (9th Cir. 2008).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. Jun. 2, 2008) (Texas conviction for assault, in violation of Texas Penal Code 22.01(a)(1), is not categorically a crime of violence for illegal re-entry sentencing purposes because the statute includes reckless conduct).

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. Mar. 10, 2008) (Colorado conviction for assault two (drugging a victim), in violation of Colo.Rev.Stat. Ann. 18-3-203(1)(e) (2001), is not a crime of violence for illegal re-entry sentencing purposes, since drugging by surreptitious means does not involve the use of physical force).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ASSAULT
United States v. Romero-Hernandez, 505 F.3d 1082 (10th Cir. Oct. 16, 2007) (Colorado conviction for unlawful sexual contact, in violation of C.R.S. 18-3-404(1), is a crime of violence, as a "forcible sex offense" for illegal re-entry purposes; a sex offense is necessarily "forcible" when the victim does not consent).

AGGRAVATED FELONY - CRIME OF VIOLENCE - FALSE IMPRISONMENT
United States v. Ruiz-Rodriguez, 494 F.3d 1273 (10th Cir. Aug. 1, 2007) (Nebraska conviction of first-degree false imprisonment, under Neb.Rev.St. 28-312(1), 28-314(1), was not categorically a crime of violence for purposes of imposing a 16-level sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) for unlawful reentry since a defendant could be convicted restricting a person's movement by deception (instead of force or threat) under terrorizing circumstances, which did not necessarily encompass an element of force).

CRIME OF VIOLENCE - SOLICITATION
United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir. Jan. 30, 2006) (Arizona conviction of solicitation to commit second-degree burglary of a dwelling, in violation of Ariz. Rev. Stat. § 13-1002, 1507, is a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii), justifying a 16-level sentence enhancement for illegal re-entry, even though the Guidelines do not expressly list solicitation where they "include" "aiding and abetting, conspiring, and attempting, to commit such offenses." U.S.S.G. § 2L1 .2 cmt. application n.5, because "include" is non-exhaustive and the examples expressly listed merely illustrative; since the mens rea and actus reus required for solicitation are similar to those required for aiding and abetting, conspiracy, and attempt, solicitation is sufficiently similar to the offenses listed in the application note to be encompassed by the note).

CRIME OF VIOLENCE - AGGRAVATED BATTERY AGAINST OFFICER
United States v. Treto-Martinez, 421 F.3d 1156 (10th Cir. Sept. 7, 2005) (Kansas conviction of aggravated battery against a law enforcement officer, in violation of K.S.A. 21-3414(a)(1)(C), is a crime of violence for sentencing purposes; "[a]lthough not all physical contact performed in a rude, insulting or angry manner would rise to the level of physical force, we conclude that all intentional physical contact with a deadly weapon done in a rude, insulting or angry manner does constitute physical force under § 2L1.2(b)(1)(A)").

CRIME OF VIOLENCE - ASSAULT
United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. July 15, 2005) (Colorado conviction for third-degree assault, "knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon," in violation of C.R.S. § 18-3-204, where judicial decisions did not require use of force, did not constitute a "crime of violence," as defined by U.S.S.G. § 2L1.2, for purposes of enhancement of a sentence for illegal re-entry, since the criminal statute has as an element causation of injury, rather than use of force: "In other words, Colorados statute looks to the consequences of the conduct, however applied, whereas the Guidelines look to the type of conduct that causes the injury.").

CRIME OF VIOLENCE - ATTEMPTED RIOT
United States v. Hernandez-Rodriguez, 388 F.3d 779 (10th Cir. Nov. 12, 2004) (Utah misdemeanor conviction for attempted riot, in violation of U.C.A. § 76-9-101, is a crime of violence for purposes of imposing an eight-level enhancement for previous conviction of an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C), because the offense meets the "crime of violence" definition in 18 U.S.C. § 16(a)).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
United States v. Torres-Ruiz, 387 F.3d 1179 (10th Cir. Nov. 2, 2004) (California conviction for felony driving under the influence of alcohol did not constitute a "crime of violence" for purposes of enhancing a federal sentence for illegal re-entry).

CRIME OF VIOLENCE - FELONY TRESPASS
United States v. Venegas-Onelas, 348 F.3d 1273 (10th Cir. Nov. 14, 2003) (Colorado conviction for first-degree criminal trespass of a dwelling, in violation of Colo.Rev.Stat. Ann. § 18-4-502, held to be a crime of violence aggravated felony within the meaning of INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), 18 U.S.C. § 16(b), since the crime, "by its nature," poses a substantial risk that the defendant will intentionally use destructive or violent force to enter or subdue the occupants in the commission of the offense, triggering an eight-level enhancement of illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(C)).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
United States v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. Oct. 28, 2003) (Texas felony conviction of driving while intoxicated is not an aggravated felony crime of violence as defined by 18 U.S.C. § 16(b)).

CRIME OF VIOLENCE - BURGLARY
United States v. Soto-Ornelas, 312 F.3d 1167 (10th Cir. Dec. 3, 2002) (conviction of burglary of a dwelling constitutes a crime of violence, and thus an aggravated felony conviction under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of 16-level illegal re-entry sentence enhancement pursuant to U.S.S.G. § 2.L1.2, comment n. 1(B)(ii)(II) (2001)).

CRIME OF VIOLENCE - CRUELTY TO CHILD
United States v. Saenz-Mendoza, 287 F.3d 1011 (10th Cir. Apr. 26, 2002) (Utah misdemeanor conviction of child abuse, cruelty toward a child, constituted an "aggravated felony" as defined in INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of sentence enhancement under U.S.S.G. § 2L1.2(b)(2), for illegal re-entry).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
Tapia-Garcia v. INS, 237 F.3d 1216 (10th Cir. Jan. 19, 2001) (Idaho conviction of DUI drugs or alcohol offense, in violation of section 18-8004(5) of the Idaho Code, constituted a crime of violence and was therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), triggering deportation).

CRIME OF VIOLENCE - SEX OFFENSE WITH CHILD
United States v. Coronado-Cervantes, 154 F.3d 1242 (10th Cir. Sept. 18, 1998) (federal conviction of knowingly engaging in sexual contact with Native American juvenile under 12 years of age, in violation of 18 U.S.C. § 1153, 2244(a)(1), 2245(3), was "crime of violence" and thus was predicate to federal sentence as career offender).

CRIME OF VIOLENCE - SEX OFFENSE OF CHILD
United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. Dec. 30, 1993) (Utah conviction of attempted sexual abuse of child, in violation of Utah Code Ann. § 76-5-404.1(1) (1990), was crime of violence under 18 U.S.C. § 16(b), and thus an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of deportation of noncitizen, even if actual physical force was not used, as crime involved nonconsensual act upon another person, which necessarily included substantial risk that physical force would be used).

CRIME OF VIOLENCE - BURGLARY
United States v. Frias-Trujillo, 9 F.3d 875 (10th Cir. Nov. 9, 1993) (Texas burglary conviction was a "crime of violence" under 18 U.S.C. § 16, and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of sentencing enhancement under § 2L1.2(b)(2) for illegal re-entry conviction).

Lower Courts of Tenth Circuit

CRIME OF VIOLENCE - ASSAULT
United States v. Holguin-Enriquez, 120 F.Supp.2d 969 (D.Kan. Oct. 12, 2000) (Washington conviction for criminal assault, with one-year suspended sentence, constituted an aggravated felony as crime of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for purpose of imposing 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) to defendants base offense level for illegal re-entry).

CRIME OF VIOLENCE - POSSESSION OF SAWED-OFF SHOTGUN
United States v. Villanueva-Gaxiola, 119 F.Supp.2d 1185 (D.Kan. Sept. 26, 2000) (California conviction for unlawful possession of short-barreled shotgun, in violation of California Penal Code § 12020, was not an aggravated felony as a crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since it had no element of the use, attempt, or threat of violence under 18 U.S.C. § 16(a), and since it is a felony-misdemeanor statute, that "encompasses misdemeanor offenses, it cannot meet the definition of crime of violence in 18 U.S.C. § 16(b)," for purposes of U.S.S.G. § 2L1.2(b)(1)(A) 16-level sentence enhancement for illegal re-entry, even though defendant in fact received 16-month state prison sentence in state case).

Eleventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " THROWING A DEADLY MISSLE AT AN OCCUPIED VEHICLE
United States v. Estrada, ___ F.3d ___, 2015 WL 479969 (11th Cir. Feb. 6, 2015) (per curiam) (Florida conviction for throwing a deadly missile, a violation of Florida Statute 790.19, was not categorically a conviction for a crime of violence, for illegal reentry sentencing purposes, because We concluded that Estrella could be deemed to have been convicted of a crime of violence if his conviction was for wanton conduct, because Florida law defines wanton to mean that one has acted intentionally or with reckless indifference to the consequences and with knowledge that damage is likely to be done to some person. Id. at 1253. But if instead Estrella had been convicted of only malicious conduct, the latter was satisfied by knowledge that injury or damage would be done to a person or to property and, in that case, Estrella would not be deemed to have been convicted of a crime of violence.), following United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED FLEEING
Dixon v. U.S. Atty. Gen., 768 F.3d 1339 (11th Cir. Oct. 1, 2014) (Florida conviction for aggravated fleeing, Fla. Stat. 316.1935(4)(a), is categorically a crime of violence under 18 U.S.C. 16(b), for purposes of triggering deportation under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it involves a substantial risk that intentional violent force will be used in the commission of the offense).

AGGRAVATED FELONY " CRIME OF VIOLENCE " EXTORTIONATE CREDIT
Accardo v. U.S. Atty. Gen., 634 F.3d 1333 (11TH Cir. Mar. 10, 2011) (federal conviction for violation of 18 U.S.C. 892(a), extortionate extension of credit, is not categorically an aggravated felony crime of violence for immigration purposes, since the statute includes harm to a persons reputation).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT ON AN OFFICER
United States v. Palomino-Garcia, 606 F.3d 1317 (11th Cir. May 21, 2010) (Arizona conviction for violation of Ariz. Stat. 13-1204(A)(7), aggravated assault against a police officer, defined as any simple assault against a law enforcement agent, is not necessarily a crime of violence for illegal re-entry sentencing purposes since the identity of the victim as a police officer does not affect the level of force required to constitute a crime of violence).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
Hernandez v. U.S. Atty Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008) (Georgia conviction for simple battery, in violation of Ga. Code Ann. 16-5-23(a)(2), requiring a touching that goes beyond insult to the infliction of pain or physical injury, is an aggravated felony crime of violence for immigration purposes.) NOTE: the court suggests, in dicta, that even a simple touching would be enough to constitute a aggravated felony crime of violence.

AGGRAVATED FELONY - CRIME OF VIOLENCE - BATTERY - PREGNANT WOMAN
United States v. Llanos-Agostadero, 486 F.3d 1194 (11th Cir. May 15, 2007) (per curiam) (Florida conviction of aggravated battery on a pregnant woman, in violation of Fla. Stat. 784.045(1)(b) ["[a]ctually and intentionally touches or strikes another person" against the latter's will, or "[i]ntentionally causes bodily harm to another person." Small v. State, 889 So.2d 862, 863 (Fla.Dist.Ct.App.2004) (construing Fla. Stat. 784.03(1)(a), 784.045(1)(b))], constitutes a "crime of violence" under USSG 2L1.2(b)(1)(A)(ii); rejecting the argument that the use of physical force was not a necessary element of the state offense), following United States v. Griffith, 455 F.3d 1339, 1340-1345 (11th Cir. 2006); United States v. Glover, 431 F.3d 744, 747, 749 (11th Cir. 2005).

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED STALKING
United States v. Esquivel-Arellano, ___ F.3d ___, 2006 U.S. App. LEXIS 29538 (11th Cir. Nov. 30, 2006) (Georgia conviction of aggravated stalking, in violation of G.S.A. 16-5-91, prohibits a wide range of conduct and does not categorically constitute a "crime of violence" under U.S.S.G. 2L1.2(b)(1)(A)(ii)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - SIMPLE BATTERY CONSTITUTES A CRIME OF DOMESTIC VIOLENCE UNDER FEDERAL CRIMINAL FIREARMS STATUTE
United States v. Griffith, 455 F.3d 1339, 1340-1345 (11th Cir. 2006) (Georgia conviction of simple battery, under Ga.Code Ann. 16-5-23(a)(1) (which occurs when a person "[i]ntentionally makes physical contact of an insulting or provoking nature with the person of another"), constitutes a "crime of domestic violence" under 18 U.S.C. 921(a)(33)(A)(ii), 922(g)(9), which defines a "crime of domestic violence" to include, inter alia, any offense that "has, as an element, the use or attempted use of physical force.").

CRIME OF VIOLENCE - PERSUADE MINOR TO ENGAGE IN UNLAWFUL SEXUAL ACTIVITY
United States v. Searcy, 418 F.3d 1193 (11th Cir. July 28, 2005) (federal conviction of using interstate commerce to persuade a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b), constitutes a crime of violence for career offender classification purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - SIMPLE BATTERY ON POLICE OFFICER CONSTITUTES CRIME OF VIOLENCE UNDER GUIDELINES
United States v. Glover, 431 F.3d 744, 747, 749 (11th Cir. 2005) (Florida conviction of simple battery on a law enforcement officer, in violation of Fla. Stat. 784.03 and 784.07, is a crime of violence under U.S.S.G. 4B1.2(a)(1) [inter alia, any offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another."]).

CRIME OF VIOLENCE - STATUTORY RAPE
Chavarria-Mejia v. Ashcroft, 367 F.3d 1249 (11th Cir. Apr. 29, 2004) (per curiam) (Kentucky conviction of statutory rape, in violation of K.R.S. § 510.060, constituted an aggravated felony crime of violence within the meaning of U.S.S.G. § 2L1.2, for purposes of applying a 16-level enhancement to a sentence for illegal re-entry).

CRIME OF VIOLENCE - BURGLARY OF DWELLING
United States v. Fuentes-Rivera, 323 F.3d 869 (11th Cir. Mar. 4, 2003) (California conviction for burglary of an inhabited dwelling under Penal Code § 459, 460(a), was a "crime of violence," for purposes of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), applicable to defendants convicted of illegal re-entry after having committed a crime of violence, notwithstanding fact that California law lacked physical force as an element of the offense).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE
United States v. Rubio, 317 F.3d 1240 (11th Cir. Jan. 7, 2003) (driving under the influence with serious bodily injury is a crime of violence for purposes of the career offender provisions of the sentencing Guidelines).

CRIME OF VIOLENCE - FALSE IMPRISONMENT
Brooks v. Ashcroft, 283 F.3d 1268, 1273 n.5 (11th Cir. Mar. 1, 2002) (Florida conviction of false imprisonment under Fla. Stat. § 787.02 is a crime of violence under 18 U.S.C. § 16, and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for purposes of deportation).

CRIME OF VIOLENCE - MENACING
United States v. Drummond, 240 F.3d 1333 (11th Cir. Feb. 8, 2001) (New York conviction for menacing, in violation of N.Y. Penal Law § 120.14, qualified as an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for enhancing illegal re-entry sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A), because it was a crime of violence for which the term of imprisonment was at least one year).

CRIME OF VIOLENCE - DRIVING UNDER THE INFLUENCE WITH INJURY
Le v. U.S. Atty. Gen., 196 F.3d 1352 (11th Cir. Dec. 3, 1999) (Florida conviction of driving under the influence with serious bodily injury, in violation of F.S.A. § 316.193(3), was a "crime of violence," under 18 U.S.C. § 16(b), as required to be an "aggravated felony" under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).

CRIME OF VIOLENCE - LEWD ASSAULT OF MINOR
United States v. Rutherford, 175 F.3d 899 (11th Cir. May 13, 1999) (Florida conviction for lewd assault of minor, in violation of Florida Statutes § 800.04, was a crime of violence for purposes of sentencing defendant as a career offender under U.S.S.G. § 4B1.1).

CRIME OF VIOLENCE - ATTEMPTED LEWD ASSAULT
Ramsey v. INS, 55 F.3d 580 (11th Cir. June 21, 1995) (per curiam) (Florida conviction of attempted lewd assault, in violation of F.S.A. § 777.04(1), 800.04(1), was crime of violence under 18 U.S.C. § 16, and therefore aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of deportation).

Other

CRIME OF VIOLENCE - MANSLAUGHTER
Matter of Jean, 23 I. & N. Dec. 373 (AG May 2, 2002) (New York conviction of second-degree manslaughter, under N.Y. Penal Law § 125.15(1), may constitute a "crime of violence" and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)).

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